Publishers 
>  Stationers, 
xsom  street, 
ladelphia. 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


LAW  DEPARTMENT 

MOTIONS  AND  RULES 

AT 

COMMON  LAW 


ACCORDING   TO   THE    PRACTICE   OF 


THE  COURTS  OF   COMMON    PLEAS  OF   PENNSYLVANIA 


BY 

JAMES  T.  MITCHELL,  LL.D. 

CHIEF  JUSTICE  OF  THE  SUPREflE  COURT  OF  PENNSYLVANIA 


SECOND    EDITION 

ENLARGED   AND   ANNOTATED  TO   1906 

BY 

WILLIAM   D.    NEILSON 

Of  the  Philadelphia  Bar 


PHILADELPHIA 

REES   WELSH   &   CO. 

LAW    PUBLISHERS     and     BOOKSELLERS 
901   BANBOM   STREET 

1906 


T 
\c\0G 


Entered,  according  to  Act  of  Congress,  in  the  year  1906,  by 

REES  WELSH  &  CO., 

in  the  office  of  the  Librarian  of  Congress  at  Washington,  D.C. 


PREFACE. 

The  original  address  by  Chief  Justice  Mitchell,  then 
one  of  the  Judges  of  Common  Pleas  No.  2  of  Philadelphia, 
before  The  Law  Academy  of  Philadelphia  on  May  15th, 
1879,  has  long  been  out  of  print,  and  the  changes  in  prac- 
tice since  that  time  being  considerable,  the  whole  work 
while  still  retaining  the  main  features  of  the  original, 
has  been  revised,  enlarged  and  brought  down  to  date, 
under  the  supervision  of  the  author,  by  the  undersigned. 

WILLIAM  D.  NEILSON. 

February, 1906 


CONTEXTS. 


i  \<.r 

I.    1.  Motions  and  rules  denned 1 

2.  Action  by  the  Court  mi  motion  by  counsel 

3.  Office  and  scope  of  rules  formerly  and  now :'. 

4.  Limit   of  scope 

5.  Tendency  of  present  time 4 

6.  Parties  may  not  attempt  too  much 5 

7.  Courts  have  no   power   to  extend   statutory  limitation-  of 

time 5 

Where  a  rule  may  be  used  with  effect  of  original  pro.,--     .  (> 

II.        Motions  niade  in  open  court 7 

III.  Rules  peremptory  or  "  nisi" 9 

Examples  of  former 9 

Rule  23.  sec.  1  Rules  C.  P.  Phila 9 

Exa7iiples  of   rules   under 10 

Rules  of  course  and  which  issue  on  motion  of  counsel  tiled 

in  court  office 11 

Some  operate  as  a  stay 17 

IV.  Rules  divided  from  another  standpoint,  of  courso 

and  "  allocatur  " 18 

Classification 18 

V.   1.  Rules   on  "allocatur." 

2.  Founded  on  affidavit 19 

Character  of  affidavit 19 

Cases  where  language  of  affidavit  must  conform  to  statute.  20 

3.  Decree  should  as  desired  be  set  out 

4.  Notice  to  opposite  party 31 

5.  When  notice  may  he  omitted 2*1 

6.  Motions  for  rules  must  be  written 

8.  Application  for  allocatur  not  always  ex  parte    .... 

9.  Rules  peremptory  not  on  lists 

10.  Rules  to  show  cause  otherwise 

11.  Rule  26,  sec.  1  Rules  C.  P.  Phila 23 

Practice  in  five  Philadelphia  Common  Pleas  Courts    .     .         24 

12.  Courts  will  not  take  up  case  ex  parte  on  first  call  .     .     .     .     24 

13.  Paper  books 

Qualities  necessary  for 28 

14.  Form  of  make-up  of  paper  books 

15.  Affidavit  of  rule  only  available  for  that  purpose    ....     30 
1G.  Argument  on  hearing  of  rule 31 

v 


yi  CONTENTS. 

PAGE 

17.  Exception  as  to  argument  for  new  trial      .......  32 

18.  Motion  in  arrest  of  judgment 33 

19.  For  judgment  noil  obstante  veredicto 34 

20.  Rule  for  new  trial 35 

21.  Second  rule  after  discharge  of  a  former 35 

VI.     List  of  principal  rules 37 

1.  Rules  relating  to  process        37 

2.  Rules  relating  to  bail,  etc 43 

3.  Rules  relating  to  attorneys ■ 46 

4.  Rules  relating  to  the  pleadings       48 

5.  Rules  relating  to  evidence 55 

G.  Rules  relating  to  trial 58 

7.  Rules  relating  to  verdict  and  assessment  of  damages  .     .     .  58 

8.  Rules  relating  to  judgment 60 

9.  Rules  relating  to  costs 67 

10.  Rules  relating  to  execution 71 

11.  Rules  relating  to  mechanic's  liens  and  municipal  claims      .  73 

12.  Rules  in  divorce , 81 

13.  Miscellaneous  rules 83 

14.  Rules  provided  for  by  statute 88 

VII.     Statement  of  claim 90 

1.  Act  of  May  25,  1887 90 

2.  History  of  development  of  practice  prior  to  the  act     ...  91 

3.  Gould  vs.  Gage,  118  Pa.  559 92 

VIII.  Requisites  of  valid  claim 95 

1.  Obligation  must  be  present  at  time  of  suit 95 

2.  Must  be  absolute        95 

3.  On  the  defendant 95 

4.  To  pay  money 96 

5.  Instrument  sued  on  may  consist  of  several  papers     ...  96 

6.  Cases  on  executory  instruments     .     .     .* 97 

Fertig  vs.  Maley,  5  W.  N.  C,  133 99 

7.  Cases  when  instrument  sued  on  does  not  show  defendant's 

complete  liability 100 

8.  Actual  language  of  instrument  must  be  given 100 

9.  Test  of  sufficiency  of  instrument 100 

10.  Copy  of  instrument  sued  on  must  be  averred  to  be  such  .     .  101 

11.  Mere  bill  not  a  copy  of  book  entries 101 

12.  Copy  to  be  carefully  compared  with  original 102 

13.  How  accuracy  of  copy  is  tested 102 

14.  Copy  may  contain  abbreviations 102 

IX.  Affidavit  of  defence 103 

1.  When  must  be.  filed 103 

2.  Must  be  a  specific  statement  of  facts 106 

3.  Form  of  affidavit  of  defence 107 

4.  Written  instrument,  how  set  out 108 


5.  General  subject  of  sufficiency  of  affidavit  of  defence  . 

6.  To  what  extent  affidavit  conclusive no 

7.  Supplemental  affidavits  of  defence 

Usual  purpose  of  supplemental  affidavit Ill 

Court  may  order  supplemental  affidavit Ill 

Course  when  supplemental  affidavit  is  still  insufficient    .     .  112 

X.      Rules  for  judgment  for  want  of  an  affidavit  or  insuf- 
ficient affidavit  of  defence    \\4 

Origin  of  judgment  for  want  of  affidavit  of  defence     .     .     .114 

Rule  upon  which  Courts  have  settled 115 

Plaintiff  to  avail  himself  of  rule  promptly 110 

XI.      Rule  for  judgment  for  part   of  claim 117 

Act  of  May  31,  189:3 •     ....  11? 

XII.  Rules  to   open  or  strike  off  judgment lis 

When  rule  must  be  to  open llli 

No  authority  for  opening  judgment  of  non  suit 119 

Rule  may  be  made  absolute  on  terms 

1.  Rules   to   open   and   strike   <>!F   judgment    usually   trei 

together Ijl 

2.  Distinction l.M 

3.  Rule  to  strike  off  judgment [33 

4.  Is  in  nature  of  a  demurrer 128 

5.  Final  judgments l.'l 

Defendant  only  to  have  rule 125 

Instances  of  the  rule 125 

As  to  time  within  which  the  rule  may  be  taken       ....  L27 

XIII.  Rules  relating  to  mechanics'  liens  and  municipal 

claims 

1.  Mechanics'  liens 

2.  Pennsylvania  Bar  Association  on  mechanics' liens      .         .  129 

3.  Act  of  June  4.  1901 129 

4.  Legislation  on  mechanics'  liens 

5.  Subject  of  rules  in  mechanics' liens 180 

6.  When  lien  is  defective       180 

7.  Test  of  strength  of  rules 182 

Municipal  claims 182 

1.  Criticism  of  municipal  claim  laws 182 

2.  Classes  of  rules 188 

3.  Example  of  irregularity  in  claim 184 

4.  Failure  to  prosecute  to  judgment  .scire  faciassur  claim  .     .  185 

5.  A  function  of  rules  in  municipal  claims 185 

6.  Importance   of  observing  statutory    requirements  of   lien 

laws 186 

XIV.  Rules  to  set  aside  sheriff's  sales 188 

1.  To  whom  notice  must  be  given 188 

2.  Practice  of  courts  in  such  cases    .     .         


viii  CONTENTS. 

PAGE 

3.  Stay  of  proceedings 139 

4.  Rule  to  be  applied  for  promptly 139 

5.  Grounds  for  rule 140 

6.  Liability  of  purchaser  at  sheriff's  sales 141 

7.  Depositions  to  be  taken 141 

XV.       Concluding  remarks 143 


MOTIONS  AND   RULES 
AT  COMMON  LAW. 


1.  Motions  and  rules  may  be  defined  in  a  general  way 
as  instruments  or  means  of  facilitating  the  progress  of  a 
cause  or  the  transaction  of  the  business  of  litigation,  by 
correcting  clerical  slips,  or  amending  errors  not  fatal ; 
by  accommodating  the  case  to  changes  of  circumstances 
since  its  commencement;  by  meeting  exigencies  unfore- 
seen or  unprovided  for;  by  removing  difficulties  in  the 
development  of  the  case  which  stop  progress;  or  by  ad- 
vancing the  case  in  any  way  towards  its  final  and  proper 
disposition. 

"  A  motion  is  an  application  to  a  court  by  a  party  or 
his  counsel;  and  the  order  made  by  a  court  on  any  mo- 
tion, when  drawn  into  form,  is  called  a  rule.  A  motion 
is  either  for  a  rule  absolute,  in  the  first  instance;  or,  it 
is  only  for  a  rule  to  show  cause;  or,  as  it  is  frequently 
called,  a  rule  nisi,  which  is  afterwards  discharged  or 
made  absolute  by  the  court,  on  argument.  By  the  gen- 
eral practice,  all  motions  made  by  counsel  must  be  put 
in  writing,  and  delivered  to  the  prothonotary,  to  be  en- 
tered on  the  minutes  and  filed;  the  time  of  delivery  to 
be  indorsed  by  the  prothonotary.  .Motions  are  of  a  civil 
or  criminal  nature;  rules  for  attachments  are  the  only 
criminal  rules  granted  which  have  any  relation  to  a  civil 
suit.  On  a  motion  for  a  rule  to  show  cause,  depositions 
on  the  adverse  side  will  not  be  received;  when  the  rule 

1 


2        MOTIONS  AND  RULES  AT  COMMON  LAW. 

applied  for  is  granted,  upon  proper  grounds  shown,  the 
adverse  party,  with  his  depositions,  will  he  fully  heard 
on  the  argument.  The  affidavit  of  a  party  is  sufficient 
to  lay  a  ground  for  a  rule  to  show  cause."  Troubat  & 
Haley  Prac,  sec.  14G9,  p.  852,  (1880).  This  is  a  com- 
prehensive definition  and  its  accuracy  is  vouched  by  the 
practice  which  has  maintained  until  the  present  day. 
The  motion  is  the  request  for  the  court's  action,  the  rule 
is  the  action  which  follows  exactly  as  it  is  asked;  in  the 
great  majority  of  instances  the  motion  is  granted,  always 
in  rules  which  are  either  of  course  or  absolute  in  the 
first  instance,  e.  (/.:  rules  for  judgment  by  default  or  con- 
fession on  warrant  of  attorney;  and  rules  nisi,  that  is  to 
say  absolute,  unless  the  party  to  whom  the  rule  is  di- 
rected shall  show  cause  for  the  discharge  of  the  rule. 

2.  Action  on  rules  by  the  court  itself  without  sug- 
gestion or  motion  by  counsel  occasionally  takes  place  in 
the  course  of  trial  of  a  cause,  as,  for  example,  the  with- 
drawal of  a  juror,  a  continuance,  a  commitment  for  con- 
tempt of  process,  the  issuing  of  an  attachment,  etc., 
and  motions  by  counsel  are  sometimes  made  in  open 
court,  but  even  these  are  not  exempt  from  the  require- 
ment that  they  be  accompanied  by  a  written  memoran- 
dum of  the  motion. 

3.  At  common  law  when  pleading  was  ore  tenus,  and 
the  nimble-witted  counsel  shifted  his  ground  from  point 
to  point  before  the  court  as  freely  as  a  dexterous  swords- 
man in  the  ordeal  of  battle;  when  a  special  demurrer 
was  still  as  fatal  as  the  thrust  of  a  rapier,  and  issues 
either  of  law  or  fact  were  single  and  simple,  the  office 
of  rules  was  extremely  narrow  and  unimportant.  If 
emergencies  arose  in  the  case  too  great  to  be  met  and 
settled  off-hand,  resort  was  had  to  the  audita  querela, 
the  writ  of  error  coram  vobis,  the  scire  facias,  and  other 


MOTIONS  AND  RULES  AT  COMMON   LAW.  3 

supplementary  writs,  and  finally  to  the  bill  in  equity. 
In  modern  practice  the  audita  querela  and  error  coram 
vobis  have  almost  disappeared,  and  for  these,  as  well  as 
for  other  remedies,  we  have  substituted  tin-  shorter,  less 
formal,  and  more  convenient  process  of  rules.  This  is 
the  tendency  of  modern  practice  in  all  common-law 
countries,  but  in  Pennsylvania  the  scope  and  usefulness 
of  rules  have  been  especially  enlarged  by  the  absence  for 
so  long;  a  time  of  a  court  of  chancery,  and  the  consequent 
development  of  equitable  principles  and  equitable  relief 
under  the  forms  of  the  common  law.  In  Pennsylvania, 
therefore,  it  may  be  said  without  too  rash  a  generaliza- 
tion, that  the  object  and  office  ofaruleare  to  meet  any 
emergency  and  remove  any  difficulty  which  is  nol  fatal 
but  which  stands  in  the  way  of  the  regular  and  speedy 
progress  of  a  cause. 

4.  The  scope  of  rules,  however,  is  not  without  well- 
defined  limits.  In  general,  it  may  be  said,  first,  that  a 
rule  will  not  be  granted  to  any  one  except  a  party  or 
privy,  or  one  having;  some  legal  interest  or  standing  in  a 
pending  proceeding  (see  Buck  V.  Boland,  1  W.  X.  C.  6 
(D.  C.  1874)  ;  Silk  Co.  v.  Disston,  7  W.  X.  <  \  63  (C.  P.  2, 
1879) ;  and  cases  passim  of  rules  by  terre-tenant,  etc.,  to 
intervene  pro  interesse  smo),  and,  secondly,  that  before 
a  court  can  grant  or  enforce  a  rule  against  any  party 
it  must  have  acquired  jurisdiction  over  him  by  some 
regular  and  recognized  legal  process.  The  party  must 
be  in  court  within  the  contemplation  of  the  law,  either 
actually,  as  party,  witness  or  juror  (or  even  spectator 
for  purposes  of  enforcement  of  order  by  punishment  for 
contempt,  etc.),  or  constructively,  as  an  officer  of  the 
court,  including  attorneys,  inferior  magistrates,  etc  In 
other  words,  a  rule  is  not  properly  original  process  in 
any  case,  hut  is  auxiliary,  and  for  the  facilitating  of 
jurisdiction  already  acquired. 


J.  MOTIONS  AND  RULES  AT  COMMON  LAW. 

5.  This  limit  to  the  proper  function  of  rules  requires 
special  attention  at  the  present  time,  from  an  apparently 
growing  tendency  to  enlarge  their  operation  in  certain 
classes  of  cases,  such  as  the  addition  of  supplementary 
parties,  e.  g.,  partners,  husband,  etc.,  in  actions  previ- 
ously pending.  This  tendency  arises  undoubtedly  from 
the  failure  sometimes  to  distinguish  accurately  between 
the  power  of  amendment  and  the  acquisition  of  jurisdic- 
tion over  the  parties  put  upon  record  by  the  amendment. 
Thus  in  Leonard  v.  Parker,  72  Pa.  236  (1872),  the  court 
below  had,  after  the  return  of  the  writ,  added  the  name 
of  Parker  as  a  defendant  without  notice  to  him.  This 
was  an  unquestionable  exercise  of  the  power  of  amend- 
ment, and  as  such  was  approved  by  the  Supreme  Court ; 
but  an  unfortunate  expression  by  the  late  Chief  Justice 
Thompson  in  delivering  the  opinion  of  the  court,  that 
"  the  party  must  be  brought  into  court  by  an  alias  sum- 
mons, or  perhaps  by  a  rule  to  appear  and  plead,"  seems 
to  give  support  to  the  notion  that  a  rule  would  in  such 
a  case  have  been  sufficient  to  bring  the  person  within 
the  jurisdiction  of  the  court,  And  following  this  sup- 
posed intimation  of  Leonard  v.  Parker,  the  court  in  Mc- 
minn v.  Johnson,  1  W.  N.  C.  312  (C.  P.  1,  1876),  is  re- 
ported as  if  it  had  treated  a  sworn  service  of  a  rule  upon 
a  new  party  as  equivalent  to  a  summons,  though  the 
report  is  not  entirely  clear  as  to  whether  the  court 
meant  to  do  anything  more  than  add  the  name  of  the 
new  defendant  to  the  record,  a  right  that  is  entirely  be- 
yond question.  This  cannot  be  done  in  a  suit  commenced 
by  capias:  Britton  v.  Hehlop,  9  W.  N.  C.  510  (C.  P.  3, 
1875). 

The  cases  of  Dunn  v.  Duncan,  2  W.  N.  C.  81  (C.  P.  3, 
1875),  and  Ward  v.  Whitney,  7  W.  N.  C.  95  (C.  P.  1, 
1875),  stand  upon  a  somewhat  different  footing,  as  in 
them  the  court  had  jurisdiction  in  rem,  by  foreign  at- 
tachment, and  by  levy  under  execution. 


MOTIONS  AND  RULES  AT  COMMON  I.UV 

The  true  line  of  distinction  and  the  proper  practice  is 
indicated  by  the  Supreme  Court  in  Dusenberry  v.  Brad- 
ley, 6  W.  N.  413,  (S.  C.  L879)  where  ii  is  said  by  Ster- 
rett,  J. :  "  It  was  quite  proper  for  the  court  to  allow  the 
amendment,  and  make  Murphy  a  party  defendant  in  the 
suit.  If  Murphy  had  been  in  court,  or  if  a  writ  had  been 
issued  and  returned  non  est  inventus"  {nihil  habet) 
"  as  to  him,  the  defence  set  up  would  have  been  fully  met 
by  the  amendment;  but  he  never  had  a  day  in  court,"  etc. 
See  also  Schweinberg  v.  Paul  Lodge,  7  \Y.  \.  is  (C.  P. 
2,  1879).  Brittin  v.  Shloss,  9  W.  X.  C.  510  (C.  P.  2, 
1880) ;  Hirsch  v.  Kohn,  1(1  \Y.  X.  C.  237  (C.  P.  2,  1881; 
and  Sheba  Lodge  v.  Berry,  17  \Y.  X.  C.  l,l,:,»  (C.  P.  1, 
1885).  But  see  Bussenger  V,  Wernwag,8  I>.  R.  263  (C. 
P.  1,  1899). 

6.  The  ease  with  which  an  adjudication  of  the  rights 
of  parties  either  interlocutory  or  final  can  he  had  by  a 
rule  tempts  practitioners  now  and  then  to  ask  too  much  : 
in  Evans  v.  Main//,  17  W.  X.  C.  377  <  S.  C.  1886),  the 
court  was  asked  to  enter  an  order  on  the  sheriff  to  de- 
liver a  deed,  after  acknowledgment  in  court  and  thereby 
constructive  delivery  to  the  vendee,  for  cancellation. 
The  rights  of  the  vendee  could  not  he  jeopardized  in  so 
summary  a  way  as  he  was  not  a  party  to  the  cause — and 
this  even  though  he  were  plaintiff  in  execution — and  the 
rule  was  discharged.  Plaintiff's  remedy  of  course  was 
in  ejectment.  Maslin  v.  Oerault,  19  Pa.  1-1  (1852),  is 
another  example  of  an  abortive  effort  to  make  a  rule  do 
duty  of  another  act  ion  and  doubtless  to  save  the  costs  of 
a  discontinuance:  see  also  Fischer  v.  /'.  />'.  A'.  Co.,  '_'  Pa. 
C.  C.  245  (1896). 

7.  Courts  have  no  power  t<>  extend  the  time  within 
which  an  affidavit  of  defence  must  lie  tiled  under  the  pin 
cedure  act  of  L887;  hut  the  same  reasons  for  doing  BO  can 


6  MOTIONS  AND  RULES  AT  COMMON  LAW. 

be  successfully  set  forth  in  a  petition  for  a  rule  to  show 
cause  why  a  judgment  for  default  of  such  should  not  be 
opened. 

There  are  cases  where  by  statute  a  rule  may  be  used 
with  the  effect  of  original  process  as  c.  g.,  proceedings 
in  an  interpleader  under  the  Act  of  May  11,  1836: 
Laughlin  v.  McCormick,  2  W.  N.  C.  352  (C.  P.  2,  1876)  ; 
rule  for  an  issue  in  sheriff's  interpleader,  Act  May  26, 
1895,  P.  L.  95.  See  post,  page  88,  Rules  provided  for  by 
statute.  But  these  cases  are  few  in  number  and  depend 
upon  positive  statute,  so  that  they  are  exceptions  only  in 
appearance,  and  fall  strictly  within  the  general  principle 
asserted,  that  jurisdiction  must  be  acquired  over  a  party 
in  the  first  instance  by  some  regular  and  authorized  legal 
process. 


MOTIONS  AND  RULES  AT  COMMON  LAW. 


II. 

Motions. 

The  following  motions  are  made  in  open  courl  in  hum1 
or  at  the  time  of  trial : 

1.  To  admit  to  membership  in  the  Bar. 

2.  For  the  appointment  of  a  guardian  u<l  litem. 

3.  To  transfer  a  case  to  another  court.      (Where  juris- 

diction has  attached  upon  the  saint'  or  a  similar 
issue  between  the  same  parties,  the  motion  is  to 
transfer  to  the  former  court  and  is  always  made 
to  the  second  tribunal). 

4.  By  the  sheriff  to  hear  acknowledgment  of  his  deeds 

poll. 

5.  For  final  decree  in  divorce. 

6.  For  a  continuance  of  the  trial. 

7.  To  withdraw  a  juror. 

8.  For  a  nonsuit. 

9.  For   judgment    on    reserved    points    of    law.      I  The 

court  cannot  enter  judgment  without  the  motion 
for  it  is  on  the  refusal  t<>  granl  the  motion  only 
that  an  appeal  can  be  taken  i.' 

1  See  Rules  C.  C.  P.  Philadelphia,  Rule  '.'".. 


8  MOTIONS  AND  RULES  AT  COMMON  LAW. 

10.  For  judgment  non  obsianto  verdicto.*    Or  in  arrest 

of  judgment. 
Some  motions  are  made  to  the  court  through  the 
clerk  by  filling  them  with  him. 

11.  To  appoint  a  master  in  an  application  for  a  charter. 

12.  To  appoint  an  auditor  of  a  trustee  committee  in 

lunacy,  etc.,  account. 

13.  To  appoint  a  master  in  partition. 

14.  To  appoint  a  master  in  divorce. 


2  To  allow  the  court  to  enter  judgment  n.  o.  v.  the  record 
must  show  the  question  of  law  clearly  stated  and  properly- 
reserved  and  the  facts  upon  which  it  is  based  must  either 
be  admitted  of  record  or  found  by  the  jury.  Henry  v.  Heil- 
man,  114  Pa.  449  (1886) ;  Currier  v.  Bilger,  12  Pa.  C.  C.  348 
(Clearfield,  1892).  For  a  complete  and  the  latest  discussion  of 
the  subject  see  Casey  v.  Penna.  Asphalt  Co.,  198  Pa.  348,  and 
490  (1901). 

It  is  customary  to  couple  this  motion  for  one  for  a  new 
trial.     Gordon  v.  Norton,  186  Pa.  168  (1898). 


MOTIONS  AND  RULES  AT  COMMON  LAW. 


III. 


Rules  may  be  either  peremptory,  i.  e.,  absolute  in  the 
first  instance,  or  they  may  be  to  show  cause,  or  in  the 

language  of  the  English  1 ks,  rules  nisi.    The  first  class 

includes  only  those  that  are  to  compel  the  performance 
of  a  fixed  and  indisputable  duty,  made  imperative  by 
statute,  by  general  rule  of  court,  or  by  the  settled  course 
of  legal  procedure.  They  arc  not  numerous,  and  the 
chief  examples  to  be  met  with  are  rules  on  the  sheriff 
to  return  a  writ  (when  the  return  day  has  passed)  or 
to  pay  into  court  the  proceeds  of  the  sale  of  real  estate, 
rules  on  counsel  to  file  his  warrant  of  attorney,  rules  to 
declare,  plead,  etc.,  rules  for  bill  of  particulars,  and 
rules  to  take  depositions  within  the  times  limited  by  the 
rules  of  court. 

These  rules,  which  are  absolute  in  the  first  instance, 
are  entered  in  the  prothonotary's  office  on  motion  "f 
counsel,  and  do  not  come  before  the  court  at  all.  unless 
brought  up  specially  in  connection  with  subsequent  pro- 
ceedings. 

The  second  class,  to  wit,  rules  to  show  cause,  is,  as 
already  said,  by  far  the  most  numerous  and  important, 
and  it  is  to  these  that  our  attention  is  principally  i"  be 
directed. 

As  to  the  former;  by  rule  23,  section  1,  of  the  Rules  of 
the  Courts  of  Common  Pleas  of  Philadelphia  county,  the 
prothonotary  is  authorized  to  entertain  motions  for  and 
enter  judgments  "  for  default  of  any  kind,"  and  directs 
him  to  assess  damages  in  all  cases  in  which  the  "  amount 


10  MOTIONS  AND  RULES  AT  COMMON  LAW. 

thereof  is  set  forth  with  certainty  in  the  statement  of 
claim  filed"  (see  note  to  this  rule,  page  109,  Rules  of 
Courts  of  Common  Pleas). 

The  following  are  the  most  common  under  this  rule  of 
court : 

15.  For  judgment  of  non  pros.z 

16.  For  judgment  by  warrant  of  attorney.     Carter  v. 

Shoener,  5  Pa.  C.  C.  186,  (C.  P.  4,  1888). 

17.  For    judgment    against    garnishees    for    failure    to 

answer  interrogatories.     Bank  v.  Lyon,  8  D.  R. 
675,  (C.  P.  1,  1899). 

IS.  For  rule  to  take  depositions. 

19.  For  judgment  for  want  of  a  plea.4, 5 


3  The  twelve  months  are  to  be  computed  from  the  date  of  serv- 
ice of  the  writ:  Ashton  v.  Bell  2  Pa.  C.  C.  483  (C.  P.  3,  1886). 

4  This  must  be  accompanied  by  an  affidavit  of  service  of  copies 
of  statement  and  rule  to  plead:  Kuhnle  v.  Moran,  1  W.  N.  C. 
19  (D.  C.  Phila.  1874)  ;  Edwards  v.  Adams,  16  W.  N.  C.  242 
(C.  P.  3,  1885);  Honeywell  v.  Tonery,  5  Kulp,  360  (Luzerne 
1889). 

5  This  judgment  cannot  be  taken  before  the  return  day  of  the 
writ:  Bloomsburg  Banking  Co.  v.  Mowry,  4  Pa.  C.  C.  247  (Co- 
lumbia 1887).  Nor  in  a  suit  for  a  penalty  for  no  affidavit  of  de- 
fence therein  is  due;  Union  Glass  Co.  v.  Bank,  10  Pa.  C.  C.  565 
(Lawrence  1890).  Nor  in  a  suit  on  a  sheriff's  official  bond; 
Barnhart  v.  Seanor,  8  D.  E.  18  (Westmoreland)  1898.  Nor  in 
an  appeal  from  a  magistrate's  court  as  the  act  of  May  25,  1887. 
P.  L.  271,  does  not  provide  for  it;  Locker  v.  Sensenig,  9  D.  R. 
704  (Lane.  1900). 

In  Taylor  v.  Nyce,  3  W.  N.  C.  433  (C.  P.  4,  1877),  a  paper 


MOTIONS  AND  RULES  AT  COMMON  LAW.  n 

20.  For  want  of  an  affidavit  of  defend 

21.  For  want  of  an  appearance.7 

22.  On  sheriff  to  pay  proceeds  of  sale  of  peal  estate, 

23.  For  bill  of  particulars  in  divorce  under  Act  May  25, 

1878,  P.  L.  156. 

21.  For  judgment  for  defendant  in  default  of  scin 
facias  sur  mechanic's  lien.  Under  Act  June  I. 
1901,  P.  L.  434,  Sec.  7,  or  municipal  claim  Act 
June  4,  1901,  P.  L.  3(h,  Sec  10. 

25.  To  assess  damages  sur  judgment.8 

The  following  rules  which  are  of  course,  and  issue  on 


was  filed  prior  to  the  motion,  which  was  plainly  for  tin'  purpose 
of  preventing  judgment  for  default,  the  court  inspected  tin' 
paper  and  determined  it  was  irrelevant  and  frivolous  and  entered 
judgment  in  default.  But  it  would  seem  this  was  at  variance 
with  the  practice  as  the  proper  procedure  would  he  for  plaintiff 
to  take  a  rule  for  judgment  for  want  of  a  sufficient  affidavit  of 
defence. 

,;  May  still  he  had  notwithstanding  act  of  May  25,  1887,  1'.  L 
271:  Humphrey  v.  Smith,  4  Pa.  C.  C.  Hi!'  I  NTo.  L,  188 

7  Judgment  cannot  he  entered  if  an  affidavit  of  defence  has 
"been  filed;  Philadelphia  v.  Hopple,  2  Pa.  C.  C.  543  (C.  P.  :•>. 

L886);  Conic,/  v.  Zweighaft,  7  D.  R.  87,  (C.  1'.  3,  L898).  tfor 
if  defendant  has  constructively  appeared  by  taking  some  steps 
in  process:  Gallager  v.  Glascow,  \:\  W.  N.  ('.  194  (C.  I'.  -'. 
1883),  or  unless  he  lias  been  actually  Berved  with  copy  of  state- 
ment ;  Hafleigh  v.  Winpenny,  9  W.  N".  C.  138  (C.  I'.  L,  I 

8  The  prothonotary  has  no  authority  to  assess  damages  except 
in  cases  specified  by  act  of  assembly  or  rule  of  court  :  Lewis  v. 
Bonnnl,  L2  Pa.  I '.  C.  366  (hark.  L892). 


12  MOTIONS  AND  RULES  AT  COMMON  LAW. 

motion  of  counsel,  filed  in  the  prothonotary's  office  are 
of  the  most  frequent  occurrence  in  our  practice. 

1.  Rule  on  the  sheriff  to  return  a  writ. 

2.  Rule  on  the  sheriff  to  pay  into  court  the  proceeds  of 

sale  of  real  estate. 

3.  Rule  to  show  cause  why  sheriff's  sale  should  not  be 

set  aside  when  filed  by  an  exceptant  to  a  special 
return  under  Rule  of  Court  36  §  5. 

4.  Sheriff's  rule  for  interpleader.9 

5.  Rule  to  show  cause  why  wrrit  should  not  be  quashed. 

(For  matter  appearing  on  the  record.) 

6.  Rule  to  show  cause  wiiy  service  should  not  be  set 

aside.      (For  matter  appearing  on  the  record.) 
McCann  v.  Ins.  Co.  10  D.  R.  560  (Lack.  1901). 

7.  Rule  to  show  cause  why  sheriff's  return  to  writ 

should  not  be  struck  off. 

8.  Rule  to  show  cause  why  mechanic's  lien  or  munici- 

pal claim  should  not  be  struck  off  for  irregularity 
appearing  on  the  face  of  the  record.10 


9  Will  be  made  absolute  if  entered  in  good  faith ;  no  affidavit  is 
necessary  in  support  of  the  rule — But  a  contest  of  the  rule  must 
be  by  sworn  answer;  Waterman  v.  Lang  don,  15  Phila.  211 
(Phila.  1882). 

10  Bank  v.  Rvsh,  2  W.  N".  C.  186  (C.  P.  4,  1875),  the  court  is 
reported  as  saying  that  "  this  is  by  no  means  a  rule  of  course/' 
and  as  discharging  the  rule  because  it  bad  not  been  allowed. 
The  practice  to-day  does  not  require  an  allocatur  under  such 
circumstances. 


MOTIONS  AND  RULES  AT  COMMON  LAW.  iq 

9.  Rule  to  show  cause  why  appeal  should  not  be  Btruck 

off. 


10.  Rule  to  file  affidavit  of  amount  claimed   under  a 

mechanic's  lieu.     (Under  act  of  4  June,  L901     P 
L.  431.) 

11.  Rule  to  show  cause  why  a  scire  facias  should  not  be 

issued    in    a    mechanic's    or    municipal    claim. 
(Under  acts  of  4  June,  1901,  P.  L.  367,  431.  | 

12.  Rule  to  show  cause  of  action  where  suit  commenced 

by  capias  or  attachment. 

13.  Rule  to  show  cause  why  defendant  should  not  he  dis- 

charged on  common  bail. 

14.  Rule  to  show  cause  why  attachment  should  not  he 

dissolved. 

15.  Rule  to  show  cause  why  hail  should  not  he  reduced. 


From  a  subsequent  report  of  what  seems  to  he  tin1  sain.' 
case,  Rush  v.  Bank,  2  W.  X.  263  ( ( '.  P.  1.  L875),  lj 
-appears  that  the  rule  was  not  founded  <>n  the  record  as  ii  stood, 
alone,  but  on  grounds  of  the  contract,  as  shown  by  depositions. 
As  applicable  to  the  case  in  hand,  therefore,  the  language  "!'  the 
court  was  undoubtedly  accurate.  Whenever  the  relief  asked  is 
founded  on  extrinsic  facts  t<>  he  shown  in  the  first  instance  by 
affidavit  and  subsequently  by  depositions,  the  rule  i-  qo!  of 
course,  but  must  be  allowed.  But  tin1  expressions  of  the  court 
must  not  be  applied  to  cases  where  the  rule  to  strike  oil"  the  lien 
is  founded  on  the  facts  as  they  already  appear  of  record.  There 
are  certain  objections  to  the  regularity  of  a  mechanic's  lien  which 
can  only  he  made  by  demurrer  or  motion  to  strike  "if  (see  Shields 
v.  Garrett,  4  W.  N.  I  10,  I '.  ( < '.  P.  I.  1871  |  :  Humphries  \.  Ad- 
dicks,  Id.  88  (C.  P.  1.  is"),  and  cases  there  cited,  and  the 
judgment  of  the  court  thereon  is  matter  of  righl  of  which  a  part  \ 
-cannot  be  deprived  by  the  refusal  of  an  allocatur  \<>  In-  rule. 


14  MOTIONS  AND  RULES  AT  COMMON  LAW. 

16.  Rule  to  justify  security.11 

17.  Rule   to   show   cause   why   security   should   not   be 

struck  off.     (For  matter  appearing  on  the  record, 
as  in  Showaker  v.  Kelly,  2  W.  N.  95  C.  P.  2, 1875) . 

18.  Rule  on  behalf  of  counsel  to  show  cause  why  he 

should  not  withdraw  his  appearance. 

19.  Rule  on  counsel  to  file  his  warrant  of  attorney.12 

20.  Rules  to  declare,  to  plead,  to  reply,  etc.,  within  the 

time  limited  by  the  rules  of  the  court. 


11  This  was  a  rule  of  course  under  the  common-law  practice 
when  security  was  taken  by  the  prothonotary  or  the  sheriff.  In 
the  present  practice  in  this  county  under  the  act  of  10th  April, 
1873  (P.  L.  776),  requiring  bonds  of  indemnity  to  the  sheriff  to 
be  justified  before  and  approved  by  one  of  the  judges  in  the  first 
instance,  and  under  the  rule  of  court  requiring  an  affidavit  by 
the  surety  (rule  adopted  October  2d,  1875,  32  Legal  Int.  362, 
and  amended  form  of  affidavit,  31  Legal  Int.  216),  it  is  probable 
that  the  practice  will  be  changed  in  these  cases,  and  an  allocatur 
be  required  for  a  rule  which  practically  compels  the  surety  to 
justify  a  second  time.  Such  a  rule,  however,  will  always  be 
allowed  upon  any  ground  shown  to  suspect  that  the  security  is 
not  real  and  ample  for  the  purpose  required,  and  especially  in 
those  cases  where  it  was  approved  without  notice  to  the  other 
side.     (See  amendment  to  Rule  10,  Sec.  3.) 

12  In  City  v.  Strawbridge,  4  W.  N.  C.  215  (C.  P.  4,  1877,  coun- 
sel proceeded  with  unusual  caution  by  a  motion  for  a  rule,  and 
the  court  is  reported  as  deciding  the  case,  after  consideration, 
upon  the  motion.  No  question,  however,  seems  to  have  been 
raised  as  to  the  method  of  proceeding.  By  the  act  of  14th  April, 
1834,  sect.  71,  the  attorney  shall,  if  required,  file  his  warrant, 
etc.,  and  by  the  established  construction  of  that  act  it  is  matter  of 
right  if  applied  for  in  time  (see  Campbell  v.  Galbreath,  5  Watts, 
426;  Merrier  v.  Merrier,  2  Dall.  142).  No  preliminary  motion 
is  required,  and  it  is  a  rule  absolute  in  the  first  instance  and 
stays  proceedings.    Reese  v.  The  Church,  1  W.  K  C.  416  (C.  P. 


MOTIONS  AND  RULES  AT  COMMON  LAW. 

21.  Rule  to  show  cause  why  rule  to  declare,  to  plead 
etc.,  should  inn   be  struck  off  as  improvidently 

entered. 

'2-2.  Rule  to  furnish  a  bill  of  particulars. 

23.  Rule  to  show  cause  why  a  more  specific  bill  of  partic- 

ulars should  not  be  furnished. 

24.  Rule  to  show  cause  why  plaintiff  should  no1  be  al- 

lowed to  amend  his  bill  of  particulars. 

25.  Rule   to   show   cause   why   nonsuit    should    not    be 

granted,  or  the  common  counts  struck  out,  for 
failure  to  furnish  a  bill  (or  a  more  specific  bill  i 
of  particulars. 

2G.  Rule  on  garnishee  to  answer. 

27.  Rule  on  garnishee  to  show  cause  why  he  should  not 

make  a  more  specific  answer. 

28.  Rule  to  show  cause  why  narr,  pleas  (or  pleadings 

generally),  should  not  be  struck  off. 

29.  Rule  to  show  cause  why  plea  of  freehold  should  not 

be  struck  off. 


4,  1875).  There  docs  not  seem  to  be  any  case  in  which  the 
right  has  been  at  all  in  question,  the  contest  always  being  on 
the  sufficiency  of  the  warrant  filed  in  obedience  to  the  rule.  See 
Miss.  R.  R.  Co.  v.  Southern  /,'.  R.  Association,  8  Phila.  101  ; 
Citizens'  Bank  v.  Keim,  1  W.  N.  C.  863  (C.  P.  1,  1875).  Hess 
v.  Hess,  1  W.  N.  C.  194  (C.  P.  1,  L874). 


16  MOTIONS  AND  RULES  AT  COMMON  LAW. 

30.  Rule  to  justify  plea  of  freehold. 

31.  Rules  for  a  commission,  or  to  take  depositions,  at  the 

times  and  in  the  modes  prescribed  by  the  rules 
of  court.13 

32.  Rule  to  show  cause  why  judgment  should  not  be 

struck  off. 

33.  Rule  to  show  cause  why  judgment  should  not  be  en- 

tered for  want  of  sufficient  affidavit  of  defence. 

34.  Rule  to  show  cause  why  judgment  should  not  be  en- 

tered for  amount  admitted  in  the  affidavit  of  de- 
fence. 

35.  Rule  on   garnishee   to   show   cause  why  judgment 

should  not  be  entered  for  the  amount  admitted  in 
his  answers. 

36.  Rule   on   garnishee   to   show   cause   why   judgment 

should  not  be  entered  for  default,  for  not  making 
more  specific  answer. 

37.  Rules  in  divorce,  to  answer,  for  divorce,  etc. 

38.  Rule  for  a  new  trial. 

39.  Rule  to  take  off  nonsuit. 

It  may  be  well  to  note  that  while  some  of  these  rules, 
such  as  the  rule  on  counsel  to  file  his  warrant  of  at- 


13  Rules  giving  shorter  notice  to  the  other  side,  or  in  any  way 
varying  the  requirements  of  the  rules  of  court,  must  be  specially 
allowed.    McGuigan  v.  Swayne,  1  W.  X.  C.  41  (D.  C.  1874). 


MOTIONS  AND  RULES  AT  COMMON  LAW.  17 

torney  (Reese  v.  The  Church,  1  \Y.  N.  C.  416,  C.  P., 
1875)  rules  for  bill  of  particulars,  etc.,  operate  in  the 
nature  of  a  stay  of  proceedings  pending  the  rule,  yel  in 
many  of  them  the  stay  is  not  of  course,  and  it'  importanl 
should  be  applied  for  specially  and  allowed  by  the  court. 
This  class  of  rules  include  all  these  which  are  peremp- 
tory in  the  first  instance  and  also  many  of  those  to  show 
cause. 
2 


18  MOTIONS  AND  RULES  AT  COMMON  LAW. 


IV. 


Rules  may  again,  regarding  them  from  another  point 
of  view,  be  divided  into  two  classes,  namely,  those  which 
are  entered  of  course  on  the  order  of  an  attorney,  and 
those  which  require  to  be  allowed  by  the  court  or  judge. 
This  division  of  rules  is  one  of  considerable  practical 
importance,  and,  speaking  from  recollection  of  my  own 
experience  at  the  bar,  is  the  cause  of  some  embarrass- 
ment to  young  practitioners.  Yet  I  am  not  aware  that 
any  effort  has  been  made  in  any  of  the  books  to  classify 
rules  on  this  basis,  or  to  determine  any  principle  upon 
which  such  a  classification  might  be  made. 

In  the  absence,  therefore,  of  any  assistance  from  the 
labors  of  my  predecessors  on  this  point,  it  is  with  some 
hesitation  that  I  venture  to  suggest  as  a  basis  for  such 
a  classification  the  very  general  principle,  that  where 
any  duty  is  made  imperative  on  the  other  party  by 
statute,  or  the  rules  of  court,  or  the' settled  course  of 
legal  procedure,  or  where,  upon  the  status  of  the  pro- 
ceedings as  shown  by  the  record,  the  party  claims  to  be 
entitled  of  right  to  the  relief  sought,  in  all  such  cases  a 
rule  may  be  entered  of  course  by  the  attorney  without 
an  allocatur. 

Such  a  generalization  is  perhaps  too  vague  to  be  of 
very  much  practical  usefulness  to  a  young  lawyer  with 
the  necessity  of  knowing  at  once  for  a  case  in  hand 
whether  he  must  get  his  rule  allowed  or  not;  but  it  is 
made  as  a  contribution  towards  the  ascertainment  of  a 
satisfactory  principle,  and  in  the  hope  that  it  may  be  at 
least  a  first  step  in  the  right  direction. 


LAW  DEPARTMENT. 

MOTIONS  AND  RULES  AT  COMMON  LAW. 


19 


V. 


1.  Coming  now  to  the  other  and  far  larger  class  of 
rules  which  require  an  allocatur,  the  first  observation 
that  occurs  is,  that  there  must  be  ground  laid  by  pet  ition 
setting  forth  the  facts  upon  which  the  relief  is  sought, 
and  must  be  sustained  by  affidavit  of  the  petitioner  of  the 
truth  of  the  facts  alleged.  About  the  time  the  address 
before  the  Law  Academy,  May  1879,  was  delivered,  a 
practice  had  obtained  among  certain  lawyers  who  held 
commissions  as  notaries  public  of  attesting  affidavits  of 
their  clients  in  litigation,  which  called  forth  the  comment 
on  page  20  of  "Motions  and  Rules  at  Common  Law,*' 
and  probably  had  not  a  little  to  do  with  the  Courl  of 
Common  Pleas  adopting  Rule  2,  which  forbids  such 
practice  and  makes  the  nullity  of  an  affidavit  so  taken 
the  penalty  for  the  breach  of  the  rule. 

2.  The  petition  for  the  allowance  of  the  rule  should 
be  a  concise  statement  of  the  facts  upon  which  the  ;i]> 
plication  is  based,  avoiding  argument.  It  is  not  neces- 
sary  to  go  into  all  the  facts  with  the  same  detail  as  would 
be  required  in  a  deposition,  but  it  is  safer  (<>  err  on  the 
side  of  fulness  rather  than  risk  the  omission  of  a  fact 
that  may  be  material.  However,  except  affidavits  «»f 
cause  of  action,  a  petition  for  a  rule  may  he  amended. 


20  MOTIONS  AND  RULES  AT  COMMON  LAW. 

If  any  part  of  the  pleadings  is  involved  a  copy  of  the 
particular  instrument  should  be  appended.  Where  the 
rule  applied  for  is  to  show  cause  why  a  judgment  en- 
tered for  default  of  an  affidavit  of  defence  should  not  be 
opened  and  defendant  permitted  to  file  his  affidavit,  a 
copy  of  it  must  be  made  part  of  the  petition  and  at  the 
return  of  the  rule  the  court  will  take  into  consideration 
the  sufficiency  of  the  affidavit  in  discharging  or  making 
absolute  the  rule.  Hunter  v.  Forsyth,  205  Pa.  466, 
(1903). 

When  the  application  for  the  rule  is  made  under  the 
provision  of  a  statute:  e.  g.,  to  enter  security  in  lieu  of  a 
municipal  claim  under  sec.  15  Act  June  4,  1901,  P.  L. 
367,  the  petition  must  conform  with  the  words  of  the 
act,  or  rather,  unless  the  facts  relied  on  in  support  of  the 
rule  be  in  exact  conformity  with  the  conditions  im- 
posed by  the  statute,  the  court  does  not  acquire  juris- 
diction to  entertain  the  rule  and  the  same,  if  improvid- 
ently  granted,  will  be  struck  off  on  application  by  an- 
other rule  to  that  end. 


3.  The  decree  as  desired  by  the  petition  should  be 
added  to  the  petition  that  the  court  may  be  saved  the 
trouble  of  drawing  it,  and  if  a  stay  of  proceedings  is  de- 
sired this  should  be  incorporated  in  the  rule.  A  stay  of 
proceedings  is  always  the  subject  of  allocatur  and  even 
if  it  be  a  rule  of  course,  where  a  stay  is  needed  it  must  be 
allowed  else  it  is  of  none  effect,  and  its  unauthorized 
addition  may  imperil  the  rule  itself.  Having  properly 
prepared  the  petition,  had  it  sworn  to,  the  next  step  is 
to  present  it  to  a  judge  of  the  court  at  chambers,  for  only 
in  cases  of  extreme  necessity  should  counsel  interrupt 
the  course  of  a  Jury  trial  by  handing  up  his  petition. 

But  the  best  method  is  to  leave  the  paper  with  the 


MOTIONS  AND  RULES  AT  COMMON  LAW.  2j 

Clerk  of  the  Court  to  hand  to  one  of  the  judges  for  bis 

action. 


4.  The  rule  having  been  granted  the  original  is  filed 
with  court  clerk  who  puts  it  down  on  the  Current  .Mo- 
tion List  of  the  day  to  which  the  rule  is  made  return- 
able, being  the  next  ensuing  Monday  if  the  date  of 
entry  is  not  less  than  forty-eighl  hours  prior,  sometimes 
the  Court  will  fix  a  later  day  for  the  return  if  the  cir- 
cumstances are  deemed  to  justify  it.  It  is  better  to  ap- 
ply for  the  rule,  where  an  allocatur  is  necessary,  or  to 
enter  it  where  it  is  of  course,  as  early  in  the  week  pre- 
ceding its  return  as  possible  and  if  feasible  gather  the 

material  for  the  paper  1 k  before  the  rule  is  entered, 

so  that  the  argument  may  be  had  when  the  case  is  called. 
Having  entered  your  rule,  if  of  course,  or  when  ii  is 
allowed,  if  not,  send  a  copy  together  with  the  reason  for 
entering  it  to  the  counsel  of  record  on  the  opposite  side. 
In  the  case  of  an  allocatur  a  copy  of  the  petition  upon 
which  the  rule  is  granted  should  be  given  him  in  order 
that  an  answer  may  be  tiled  when  it  is  necessary  to 
deny  the  facts  of  the  petition.14 

5.  While  the  etiquette  of  practice  and  the  sanction  of 
custom  demand  that  opposing  counsel  shall  have  notice 
of  the  return  day  of  a  rule.  i.  e.}  when  the  quest  ion  raised 
is  to  be  argued — to  show  cause,  it  is  not  necessary  to 
notify  him  of  intention  to  move  for  judgment  for  default 
for  the  state  of  the  record  demonstrates  whether  the 


14  Where  a  rule  ig  taken  in  open  court  it  ie  unnecessary  to  i:\\<' 
notice 'if  it-  return  to  opposing  counsel :  Uillaker  v.  Kinzua  Pad 
Co.,  L3  D.  R.  135  (Warren  L903), 


22  MOTIONS  AND  RULES  AT  COMMON  LAW. 

motion  can  prevail  or  not.  But  even  though  notice  is 
not  by  law  required,  in  certain  cases,  where  there  is 
merit  in  the  position  of  the  side  of  the  cause  against 
which  the  rule  is  taken,  it  is  not  a  work  of  supereroga- 
tion and  may  be  the  saving  of  much  trouble,  to  warn 
opponent  counsel  of  the  intention  to  act.  It  is  not  al- 
ways wise  to  take  advantage  of  an  opportunity  to  take 
judgment  for  default,  such  judgments  are  readily  opened 
and  the  process  entails  more  trouble  upon  an  eager 
litigant  than  if  he  had  reminded  his  adversary  of  his  de- 
linquency and  permitted  the  case  to  be  measured  by  its 
merits  and  determined  thereon.  The  courts  of  to-day 
insist  on  the  administration  of  substantial  justice,  and 
parties  can  no  longer  be  deprived  of  their  "  just  rights  " 
by  the  relentless  application  of  technicalities,  the  delight 
of  the  sharp  practitioner  and  the  revel  of  the  petti- 
fogger. 

G.  As  has  been  stated  before  (ante  p.  2),  all  motions 
for  rules  as  well  as  the  rules  themselves  must  be  in 
writing  for  the  obvious  purpose  of  insuring  accurate 
docketing  and  preservation  for  future  reference  or  use  as 
parts  of  the  record. 

7.  Having  prepared  the  rule  and  reason,  therefor,  or  in 
the  case  of  an  allocatur,  had  it  allowed,  leave  the  original 
in  the  Prothonotary's  Office  in  the  receptacle  placed  for 
the  purpose  by  the  clerks  of  the  five  courts,  or  else  hand 
it  to  the  appropriate  clerk  and  serve  a  copy  upon  op- 
posing counsel  where  service  of  notice  of  the  rule  is  re- 
quired, this  is  a  sufficient  compliance  with  the  requisi- 
tion except  in  case  of  a  rule  to  show  cause  why  an  at- 
tachment of  the  person  should  not  issue:  this  being  a 
proceeding  looking  to  the  punishment  of  the  party  to 
whom   the   rule   is   directed,   even   though   he   has   ap- 


MOTIONS  AND  RULES  AT  COMMON  LAW.  33 

peared  by  counsel,  the  notice  must   be  served  on  him 
personally. 

8.  While  as  a  general  rule,  application  for  an  allo- 
catur is  made  cj-  parte,  yet  the  court  may  direct  no- 
tice to  be  given  to  the  other  party  of  an  intent  ion  to 
apply. 


9.  Rules  peremptory  or  absolute  in  the  first  instance, 
as  already  said,  do  not  come  before  the  court  at  all, 
but  are  entered  by  the  prothonotary,  ami,  it'  not  obeyed, 
are  enforced  according  to  their  nature,  by  a  second 
order  of  counsel,  as  to  enter  nonsuit  for  want  of  a  state- 
ment, or  judgment  for  want  of  a  plea  ;  or  by  a  subsequent 
rule  or  proceeding  founded  upon  the  first,  as  a  rule  for 
an  attachment  for  not  returning  a  writ,  etc. 

10.  Rules  to  show  cause,  on  the  other  hand,  are  placed 
by  the  court  clerks  on  the  appropriate  lists,  and  upon 
the  return  day  are  called  by  the  court  for  the  hearing. 
The  regular  return  day  is  the  .Monday  following  the 
granting  of  the  rule,  and  no  other  return  day  is  ever 
allowed  except  in  special  cases  and  for  very  urgent  rea- 
sons. It  is,  however,  within  the  discretion  of  the  court 
to  fix  an  earlier  day  if  the  urgency  of  the  case  requires 
it;  and  there  are  a  few  exceptional  cases  where  statutes 
or  long-settled  practice  have  required  a  longer  time  for 
the  running  of  the  rule.  Thus  the  rule  to  produce  books 
or  papers  at  the  trial  under  the  act  of  27th  February, 
1798,  is  by  long-settled  practice  a  thirty  day  rule.  These, 
however,  are  rare  and  exceptional  cases,  ami  in  a  general 
consideration  of  the  subject  may  be  safely  disregarded. 

11.  Rule  2b,  sec.  l,  (Rules  Courts  of  Common  Pleas, 
Phila.,  p.  117),  provides  that  **  Motions  and  Rules  shall 


24  MOTIONS  AND  EULES  AT  COMMON  LAW. 

be  entered  on  the  Current  Motion  List,  which  shall  be 
called  on  the  regular  motion-day  in  each  week.  Any 
Rule  on  the  Current  List  which  the  counsel  for  either 
party  shall  insist  upon  having  heard,  shall  be  disposed 
of,  unless  cause  be  shown  to  the  contrary." 

Monday  has  been  for  several  years  the  day  on  which 
the  Court  in  Banc  convenes  to  hear  the  Current  Motion 
list,  and  once  a  month,  the  third  or  fourth  week  of  the 
month,  is  devoted  to  calling  cases  undisposed  of  on  prior 
Current  Motion  lists,  the  General  or  Miscellaneous  Ar- 
gument and  other  lists. 

By  an  amendment  of  section  4,  Rule  26  of  Courts  of 
Common  Pleas  of  Philadelphia  (page  118)  it  is  provided 
that  "  The  Current  Motion  list  shall  be  called  but  twice, 
and  all  other  lists  three  times.  On  the  third  calling  all 
cases  not  answered  to  shall  be  finally  disposed  of:  that 
is  to  say,  Rules  for  New  Trials,  to  take  off  nonsuits. 
Rules  for  New  Trials  and  Judgments  on  points  reserved 
shall  be  considered  as  submitted  without  argument,  and 
decided  upon  the  report  of  the  judge  before  whom  the 
case  was  tried.  Rules  for  Judgment  and  all  other  Rules 
Nisi  shall  be  discharged  for  want  of  prosecution." 

The  Practice  now  followed  in  the  five  Courts  of  Com- 
mon Pleas  of  this  County  in  respect  to  the  Current  Mo- 
tion list,  is  as  follows: 


Court  Number  One:  If  the  case  is  unanswered  to 
by  either  party  at  the  time  it  first  appears  on  the  Cur- 
rent Motion  list  it  passes  to  the  next  "  Undisposed  of 
Cases  on  prior  Current  Motion  lists." 

If  at  its  first  appearance  it  is  continued,  it  will  be  put 
on  the  next  ensuing  Current  Motion  list. 

Court  Number  Two:  In  the  first  alternative  the 
case  awaits  the  ordering  on  any  succeeding  Current  Mo- 


MOTIONS  AND  RULES  AT  COMMON  LAW, 

tion  list,  by  counsel  of  which  the  opposing  counsel  must 
have  notice. 

In  the  second  alternative,  same  as  Conri  Number  One. 

Court  Number  Three:    In  the  first  alternative  it  is 
struck  from  the  list  but  may  be  ordered  again  on  any 
subsequent  Current  Motion  list. 
In  the  second:  same  as  Court  Number  One. 

Court  Number  Four:  In  the  first  alternative,  it 
goes  forthwith  to  the  next  "  General  Motion  list,"  pecul- 
iar to  this  Court  where  if  not  answered  to,  it  is  dis- 
charged on  third  call. 

In  the  second :  same  as  Number  One. 

Court  Number  Five:  In  the  first  alternative  same 
as  Number  Two. 

In  the  second :  same  as  Number  One. 

12.  Under  the  authority  of  Court  Rule  No.  26, 
(supra),  when  a  case  is  called  on  the  Currenl  Motion 
list  of  the  day  it  is  returnable,  it  is  the  right  of  either 
party  to  insist  on  the  argument  taking  place,  bul  the 
Courts  are  very  lenient  as  to  the  weighl  of  the  "  cause 
shown  to  the  contrary"  which  moves  the  Courl  to  con- 
tinue the  matter.  The  Court  will  not  lake  up  the  case 
ex  parte  at  the  first  call  but  if  the  absentee  persists  in 
his  absence  at  the  second  call,  on  demand  of  the  party 
present  the  Court  will  hear  the  case.  It  is  question- 
able whether  it  is  good  policy  to  insist  mi  an  ex  parte 
argument,  first  of  all  the  court  anxious  to  d<>  just  ice  will 
in  a  measure  protect  as  far  as  is  possible,  tin'  suitor  un- 
represented, and  in  close  cases  this  may  develop  ;i  COUrS€ 

of  reasoning  in  the  mind  of  the  Court,  which  may  result 
in  the  prevailing  of  the  absent   litigant.     Bul   besides 

this,   even   if  counsel    who   presses    for  argument,    IS   8UC« 


26  MOTIONS  AND  RULES  AT  COMMON  LAW. 

eessful,  he  will  be  apt  to  have  to  defend  against  an  at- 
tempt to  open  the  judgment,  which  entails  delay  and 
trouble.  Where  depositions  are  required  a  continuance 
will  be  granted  pending  their  being  taken,  and,  under 
the  present  practice  this  continuance  may  be  had  until 
both  sides  have  concluded  their  testimony  when  the  cases 
can  be  again  put  on  the  list. 

13.  The  rule  being  on  its  appropriate  list  and  ready 
for  hearing,  it  is  the  duty  of  the  party  who  is  entitled  to 
begin  (as  to  which  see  infra,  p.  32)  to  furnish  each  of 
the  judges  with  a  paper  book.15    This  rule  is  imperative 


15  The  origin  of  the  term  paper  book  not  being  perhaps  gener- 
ally understood,  and  being  not  unfrequently  thought  to  be  (like 
Pamphlet  Laws)  a  peculiar  Pennsylvania  idiom,  it  may  be 
interesting  to  note  it  here,  especially  as  it  supplies  an  illustration 
of  the  indebtedness  of  the  junior  bar  to  Lord  Mansfield.  By  the 
ancient  practice  of  the  English  courts  on  motion  days  the  court 
began  by  calling  upon  the  senior  barrister  present  to  move,  and 
after  he  had  been  heard  then  the  next  in  seniority,  and  so  on 
through  the  bar  as  far  as  the  day's  sitting  would  permit.  This 
custom  it  may  be  observed  continued  down  to  our  own  day  in 
the  courts  of  our  conservative  neighbor,  New  Jersey.  The  next 
day  the  same  process  was  repeated,  starting  with  the  senior  again, 
and  thus  it  frequently  happened  that  several  days  or  even  weeks 
would  elapse  before  some  of  the  juniors,  no  matter  how  urgent 
their  cases,  could  get  a  chance  to  be  heard.  Lord  Mansfield  ob- 
serving the  hardship,  changed  the  practice  by  beginning  the  call 
on  the  next  day  with  the  barrister  whose  turn  it  would  have  beeD 
to  move  next  at  the  adjournment,  and  thus  going  through  the  en- 
tire bar  before  returning  to  the  senior.  He  also  ordered  certain 
motions  requiring  argument  to  be  put  down  on  a  paper  or  as 
we  should  call  it  now,  a  list,  which  the  court  would  go  through 
before  entering  on  the  general  call  of  the  bar.  The  days  of  hear- 
ing these  matters  came  to  be  known  as  paper  days,  and  the  briefs 
required  to  be  furnished  to  the  judges  in  analogy  to  the  demurrer 
and  issue  books  of  the  previous  practice,  were  called  paper  books. 
1  Chitty's  Archbold,  95";  Tidd,  507;  Campbell's  Lives  of  the 
Chief  Justices  of  England,  vol.  iii,  ch.  34.  It  is  well  known  that 
some  of  the  most  eminent  of  our  Pennsylvania  lawyers  were 


MOTIONS  AND  RULES  AT  COMMON  LAW 

-  > 

and  has  no  exceptions.  It  is  occasionally  disregarded 
in  merely  formal  matters  qoI  requiring  argument,  but  it 
is  liable  to  be  enforced  at  any  time  without  regard  to  the 
nature  of  the  ease  or  the  action  of  the  court  in  other 
eases  of  a  similar  kind. 

The  office  of  a  paper  hook  is  to  inform  the  court   of 
the  facts  upon  which  action  is  asked,  but  it  has  also  a 

subordinate  office  of  recalling  a  case  after  it   has  1 q 

argued  and  comes  up  in  consultation  of  the  judges  for 
decision.  In  the  ordinary  routine  of  the  Monday  lists 
eases  are  decided  at  once  on  the  hearing,  hut  even  in 
the  most  frequent  and  common  rules  counsel  may  un- 
expectedly differ  about  the  facts,  doubts  may  arise  upoo 
the  law,  or  difficulties  he  suggested  which  will  induce 
the  court  to  hold  the  case  over  for  consideration,  and  in 
these  instances  a  rather  full  paper  hook  is  absolutely 
necessary.  It  is  never  therefore  safe  in  any  case  to 
come  to  a  hearing  without  a  paper  hook.  The  rule  of 
court  requires  that  it  shall  contain  "a  full  and  distinct 
statement  of  all  facts  conducive  to  a  ready  apprehension 
of  the  matter  to  be  argued."  In  addition  to  this  it  is 
generally  useful  where  the  case  requires  argument  at  all 
to  have  a  brief  memorandum  of  the  points  upon  which 
reliance  is  to  be  made.  Many  rules,  especially  to  open 
judgment  or  set  aside  execution,  involve  a  considerable 
amount  of  depositions.  It  is  not  of  course  desirable 
that  the  paper  hooks  should  he  incumbered  with  an  ex« 
tensive  resume  of  all  the  testimony,  hut  a  short  skeleton 
of  the  facts  claimed  to  he  proved  is  always  a  desirable, 
and  frequently  an  indispensable  guide  to  the  peal  points 


students  in  the  Middle  Temple  during  Lord  Mansfield's  time 
(anions  them  Judges  McKean  and  Xeates,  Edward  Tilghman 
Jared  Ingersoll,  and  William  Rawle),  and  ii  i-  probable  that 
they  l>rou<rlit  the  term  paper  books  home  with  them,  and  fixed 

it  in  Pennsylvania  law. 


28  MOTIONS  AND  RULES  AT  COMMON  LAW. 

in  issue.  Again,  not  unfrequently  a  rule  such  as  that 
for  judgment  against  a  garnishee,  may  involve  a  large 
amount  of  writing,  and  yet  the  key  of  the  whole  may  be 
in  a  few  lines  containing  the  admission  of  assets  in 
hand,  and  of  course  that  is  all  the  paper  book  need  or 
ought  to  contain.  Bearing  in  mind  the  office  of  a  paper 
book,  to  inform  the  court  in  the  first  place,  or  to  recall  to 
it  subsequently  all  the  facts  necessary  to  a  comprehen- 
sion of  the  case,  or  to  an  intelligent  following  of  the 
depositions  as  they  bear  on  the  points  in  issue,  it  will 
rarely  be  difficult  to  avoid  on  the  one  hand  insufficiency 
of  statement,  and  on  the  other  unnecessary  prolixity. 

Rule  26,  sec.  9  of  the  rules  of  court  also  require  that 
paper  books  shall  be  written  in  a  plain  legible  hand,  or 
printed.  What  the  penalty  of  disregarding  this  rule 
may  be,  is  not  stated. 

Although  this  rule  was  adopted  before  type-writing 
was  in  general  use,  and  while  the  instances  of  a  hand- 
written paper  book  are  now  rare,  yet  the  principle  is 
applicable  to  type-written  books,  and  even  greater  neat- 
ness is  expected  and  exacted  in  the  modern  substitution 
for  pen  and  ink  "  books."  The  Court  of  King's  Bench 
under  Lord  Tenterden,  though  deciding  a  rule  in  the 
plaintiff's  favor,  refused  him  costs  because  his  affidavit 
was  written  in  a  slovenly  manner.  Bane  v.  Jones, 
8  Dowl.  &  By.  114.  We  have  unfortunately  no  such  rod 
in  pickle  for  poor  books,  but  it  may  be  said  that  a  little 
care  bestowed  on  the  legibility  and  neatness  of  a  paper 
book  will  not  be  wasted.  In  the  words  of  a  distin- 
guished Jurist,  "  I  have  known  more  than  one  case 
while  I  was  at  the  bar  and  since  to  be  gained  by  the 
printing  of  an  important  covenant  or  other  document 
whose  full  force  the  court  was  thus  assisted  in  clearly 
and  readily  grasping." 

The  importance  and  value  of  exercising  care  and  neat- 
ness in  the  preparation  of  paper  books  cannot  be  over 


MOTIONS  AND  RULES  AT  COMMON   LAW. 

estimated.  The  attention  of  the  Court  is  invited  by 
neatness,  and  where  this  is  a  feature  of  the  book,  Buch  a 
presentation  of  the  case  is  apl  to  follow  as  to  insure 
speedy  at  least,  if  not  favorable  disposition.  Counsel 
would  have  less  cause  to  complain  of  tar.lin.-ss  on  the 
part  of  the  Courts  in  determining  matters  brought  he- 
fore  them  on  Motion  or  Argument  lists,  if  their  cases 
were  presented  to  the  court  in  attractive  and  intelligible 
form. 

14.  It  is  suo-^ested  that  following  the  Rules  of  the  Ap- 
pellate Courts  in  the  make-up  of  paper  books  would  ac- 
complish good  results  in  this  line.     First,  give  the  title 

of  the  case,  follow  this  with  a  statement  of  the  nature 
of  the  application  or  rule:  this  with  a  copy  of  the 
Docket  entries:  this  with  a  copy  of  the  rule  together 
with,  if  an  allocatur,  a  copy  of  the  petition  on  which  it 
Tvas  allowed  or,  if  of  course  a  copy  of  the  u  reason  "  for 
the  rule:  this  by  a  \>'vy  brief  'history  of  the  case:" 
this  by  a  concise  statement  of  the  "question  for  deter- 
mination "  and  this  by  the  argument. 

The  argument  should  be  a  short  presentation  <»f  the 
authorities  upon  which  counsel  relies:  it  is  net  wise  to 
cite  cases  as  supports,  merely  by  title  an. I  place;  select 
one  or  two  authorities  where  the  facts  are  in  close  re- 
semblance to  those  of  the  case  at  bar  an. I  draw  the 
parallel  likeness  of  the  cases. 

Five  copies  of  the  paper  book  should  lie  prepared,  one 
for  each  of  the  judges,  one  for  opposing  counsel  an. I  one 
to  be  kept  for  counsel  in  support  of  the  pule. 

The  counsel  in   opposition  need  not  prepare  so  elabo 
rate  a  "book;"  his  may  be  confined  to  a  statement  of 
facts,  as  his  side  views  them,  ami  an  argument  of  simihr 
proportions  to  that  of  his  antagonist. 

Copies  of   papers  should    be  "single  spaced  "    if   I  \  p. 
written  and   original    matter,   history   of  the   case  ;ii"'i 


30  MOTIONS  AND  RULES  AT  COMMON  LAW. 

ment,  etc.,  "double  spaced."  The  "backing"  of  the 
book  should  be  endorsed  as  if  it  were  for  filing  in  the 
record  and  should  be  endorsed  as  "  Paper  Book  of  Plain- 
tiff (or  Defendant).    Sur  Kule  to " 

15.  As  already  said,  rules  which  rest  on  the  facts  ap- 
pearing on  the  face  of  the  record,  or  the  admitted  writ- 
ings in  the  case,  do  not  require  any  affidavit.  All  other 
rules  must  be  founded  on  affidavit.  The  affidavit,  how- 
ever, is  not  admissible  as  evidence  at  the  hearing.  Coxe 
V.  Nichols,  2  Y.  54G ;  Hoar  v.  Mulvey,  1  Binney,  145.16 
The  objection  made  in  those  cases  that  the  testimony  of 
the  parties  is  not  admissible  at  the  hearing  is  of  course 
no  longer  tenable,  but  the  ex  parte  character  of  affida- 
vits is  still  sufficient  to  exclude  them.  All  rules  to  show 
cause  include  authority  to  take  depositions  both  in  sup- 
port of  and  against  them  (Coulon  v.  De  Lisle,  1  Browne, 
256)  ;  and  in  general  depositions  are  required.  Usually 
it  is  the  duty  of  the  party  obtaining  the  rule  to  take  dep- 
ositions in  support  of  it.  He  must  give  the  opposing 
counsel  forty-eight  hours'  notice  of  the  time  and  place, 
and  the  latter  is  entitled  to  a  reasonable  time  after  these 
depositions  are  finished  to  take  counter-depositions  on 
his  own  side,  if  he  desires  so  to  do. 

Depositions  may,  however,  in  any  case  be  dispensed 
with,  in  the  first  instance,  by  agreement  of  counsel  that 
affidavits  may  be  read  instead,  and  in  special  cases  the 
court  may  entertain  an  affidavit  as  a  matter  of  grace, 
though  such  a  privilege  is  rarely  accorded,  and  never 
except  for  sufficient  cause  shown. 

On  a  rule  to  open  a  judgment  taken  for  want  of  an 
affidavit  of  defence,  on  the  ground  that  the  failure  to 
file  an  affidavit  was  an  oversight  of  counsel,  or  some 


16  See  Pearson's  Petition,  13  Lane.  Rep.  147. 


MOTIONS  AND  RULES  AT  COMMON  LAW.  gj 

accident  or  mistake  not  the  fault  of  the  defendant  him- 
self, it  is  now  the  usual  practice  to  accept  an  affidavit 
of  the  cause  of  the  failure  and  of  the  merits  of  the  de- 
fence relied  upon.  The  failure  to  file  the  affidavit  in 
time  being  satisfactorily  accounted  for,  the  rule  is 
treated  in  the  first  instance  as  if  it  wen-  a  rale  for  judg- 
ment for  want  of  a  sufficient  affidavit  of  defence,  and  if 
judgment  on  such  a  rule  would  have  been  refused  it  is 
now  opened.  Brady  v.  Wisler,  2  A\'.  X.  C.  82,  (C.  P.  I. 
1875).  This,  however,  is  subject  to  the  discretion  of  the 
court  to  order  depositions,  either  on  the  merits  «>f  the 
defence  or  on  the  cause  of  the  failure  to  tile  the  affidai  it 
in  time,  should  the  court  desire  further  or  more  specific 
information  on  the  case. 

It  is  also  in  the  discretion  of  the  court  to  order  deposi- 
tions on  either  side  at  any  time,  even  though  counsel 
have  agreed  to  dispense  with  them. 

16.  The  rule  having  been  reached  upon  its  appropri- 
ate list  and  called  for  argument,  the  party  who  has  ob- 
tained the  rule  has  the  burden  of  proof  upon  him,  and  is 
therefore  entitled  to  begin  and  conclude. 

Rule  26,  sec.  7.  (Rules  Court  C.  P.  Phila.)  provides 
than  on  Motion  List  ( 'ases  but  one  counsel  on  each  side 
may  be  heard,  while  in  those  on  the  argument  list  two 
on  each  side  can  address  the  court. 

Rules  to  show  cause  of  action  and  to  dissolve  attach- 
ments are  said  to  be  exceptions,  and  it  is  provided  by 
section  6,  rule  26,  of  the  Rules  of  Court,  thai  in  th<  Be 
cases  the  party  who  is  to  show  cause  is  to  begin  and  con- 
elude.  These  rules,  however,  which  formerly  made  up 
so  large  a  proportion  of  the  lists  as  to  require  :i  >|  •<  <i;i  1 
practice,  have  now  become  comparatively  rare  and  of 
little  importance  and  the  distinction  made  in  the  rules 
of  court  is  not  now  commonly  observed.  In  met,  the 
present   practice  in   regard   to  the  order  of  argument 


32  MOTIONS  AND  RULES  AT  COMMON  LAW. 

upon  the  hearing  of  the  ordinary  Motion  List  is  exceed- 
ingly informal,  and  it  is  usual  for  the  courts  after  look- 
ing at  the  paper  books  to  indicate  which  side  they  desire 
to  hear  first,  and  to  direct  the  course  of  the  whole 
argument  in  their  discretion,  so  as  to  reach  the  contro- 
verted and  vital  points  of  the  case  in  the  speediest  way. 
In  the  absence,  however,  of  any  indication  by  the  court, 
the  regular  form  of  proceeding  is  for  the  counsel  who 
obtained  the  rule  to  begin  and  conclude.  The  Argument 
Lists  containing  demurrers,  cases  stated,  etc.,  are  con- 
ducted more  formally,  and  counsel  heard  at  greater 
length,  and  in  the  established  order. 

17.  As  already  said,  rules  are  commonly  granted  in 
the  first  instance,  without  argument,  upon  the  presenta- 
tion of  affidavits  making  a  prima  facie  case.  The  argu- 
ments for  and  against  the  rule  are  heard  together  on  the 
return  day,  or  when  the  case  is  reached.  Rules  for  new 
trial,  and  rules  to  take  off  nonsuits  are,  however,  excep- 
tions. As  to  these,  the  English  practice  still  prevails, 
and  the  party  desiring  a  rule  must  enter  a  formal  writ- 
ten motion  for  a  rule  (accompanied  by  his  reasons)  in 
the  court  office  within  four  days  after  the  verdict  or  non- 
suit. A  copy  of  the  reasons  must  also  be  furnished 
within  the  four  days  to  the  judge  who  presided  at  the 
trial.  This  requirement,  though  frequently  overlooked, 
is  imperative,  and  is  liable  to  be  enforced  at  any  time  by 
a  dismissal  of  the  motion.  The  obvious  purpose  of  the 
rule  is  to  enable  the  judge  to  examine  his  notes,  with 
his  attention  called  to  the  reasons,  while  the  matter  is 
fresh,  and  thus  to  avoid  what  is  always  disagreeable,  a 
conflict  of  recollection  between  the  judge  and  counsel 
as  to  what  took  place  at  the  trial. 

The  rule  for  a  new  trial  is  placed  upon  the  New  Trial 
Argument  List  next  following  the  entry  of  the  rule. 
Formerly  the  practice  was  either  in  the  case  of  new 


MOTIONS  AND  RULES  MMoN  LAW.  33 

trials  or  nonsuit  to  make  a  motion  for  a  rule  for  a  aew 
trial  or  to  take  oil' a  nonsuit  on  a  list  entitled  ••  New  Trial 
Motion  List"  the  motion  was  heard  <  ./•  parti  and  if  a 
rule  to  show  cause  were  allowed  why  a  new  trial  should 
not  be  granted,  or  a  nonsuit  taken  off,  was  entered  by 
the  court  of  which  notice  was  given  to  the  opposing 
party  by  counsel  for  the  rule  which  took  its  place  on  the 
next  New  Trial  Argument  List.  The  pule  for  a  new- 
trial  is  a  real  rule  to  show  cause  as  underst 1  in  the 

English  practice  and  in  all  the  old  books;  that  is  the 
burden  of  showing  cause  is  upon  the  party  against  whom 
the  rule  has  been  obtained  and  at  the  argument  he  is  to 
furnish  paper  books  and  is  entitled  to  open  and  conclude 
the  argument. 

18.  By  Rule  27  ( Rules  of  Court  of  Common  Pleas, 
Philadelphia,  p.  123),  motions  for  judgment  on  points 
reserved  and  in  arrest  of  judgment  are  added  <<>  motions 
for  new  trial  and  to  take  off  non-suit  in  I  he  requirement 
that  they  be  made  and  filed  with  the  reasons  therefor 
within  four  days  after  the  verdict,  ami  a  copy  of  the 
reasons  furnished  to  the  judge  before  whom  the  cause 
was  tried  and  served  on  the  opposite  party  within  the 
four  days. 

Many  years  ago,  in  the  old  practice  the  taking  of  a  bill 
of  exceptions  to  the  admission  or  rejection  of  evidence, 
or  to  the  charge  of  the  judge  at  the  trial,  was  considered 
as  a  waiver  of  any  right  to  a  new  trial  upon  the  same 
point.  Because  it  was  thought  to  be  giving  the  party 
the  unfair  advantage  of  two  chances,  one  before  the 
Court  in  Banc  and  one  before  the  Appellate  Court. 

In  cases  of  compulsory  nonsuit  under  the  act  of  L836, 
a  writ  of  error  lies  only  t<»  the  action  of  the  Court  in 
Banc  in  refusing  to  take  off  the  nonsuit.     The  reasons 

of  exception,  therefore,  must  be  presented  to  the  Court  in 

lid  tie,  and  the  practice  in  other  cases  of  motions  for  ae* 

trial   is  now  uniform  with  this.     The  errors  Of  the  trial 
3 


34  MOTIONS  AND  RULES  AT  COMMON  LAW. 

are  now  always  included  among  the  reasons  for  a  new 
trial,  and  the  Supreme  Court  have  more  than  once  inti- 
mated that  where  a  court  consists  of  more  than  one 
judge  they  are  entitled  to  the  opinion  of  the  court  in 
Banc  before  they  should  be  troubled  with  a  writ  of  error. 

19.  Motions  for  judgment  non  obstante  veredicto,  or 
on  points  reserved  at  the  trial  (under  our  act  of  Assem- 
bly of  March  28th,  1835),  are  usually,  and  as  a  matter  of 
caution  ought  always  to  be,  accompanied  by  a  motion 
for  a  new  trial,  and  are  placed  upon  the  same  list  and 
heard  in  the  same  manner.  Judgments  on  points  re- 
served under  act  of  Assembly  (in  analogy  to  the  English 
motion  for  judgment  non  obstante  veredicto  on  points 
reserved,  in  which,  however,  the  reservation  is  always  by 
consent)  originated  in  the  act  of  March  1st,  1825,  in  re- 
lation to  the  District  Court  of  Philadelphia,  and  were 
not  extended  generally  to  the  other  courts  of  the  com- 
monwealth until  18G3.  A  certain  strictness  was  long 
observable  in  the  treatment  of  them  by  the  Supreme 
Court,  and  it  sometimes  happened  that  the  rule  for  a 
new  trial  saved  a  case  that  would  otherwise  have  been 
lost.  Thus  where  judgment  was  entered  by  the  District 
Court  for  the  defendant  on  a  point  reserved,  and  the 
Supreme  Court  reversed  it,  the  case  was  saved  to  the 
defendant  by  the  motion  for  a  new  trial.  Harper  v. 
Keely,  17  Pa.  234  (1851).  Moreover,  it  sometimes  hap- 
pens that  in  the  hurry  of  a  trial  it  is  taken  for  granted 
that  all  the  facts  are  uncontroverted,  and  therefore  may 
be  assumed  as  the  basis  of  a  judgment  on  the  point  re- 
served, while  a  more  careful  and  deliberate  examination 
upon  coming  to  enter  the  judgment  shows  a  gap  in  the 
admitted  facts  on  the  record,  or  a  contest  upon  some  of 
the  evidence.  See  Central  Building  Association  v.  JYit- 
zell,  13  Phila.  54  ( C.  P.  2,  1879) .  For  these  reasons  it  is 
always  the  safer  and  better  practice  to  join  a  motion  for 


MOTIONS  AND  RULES  AT  COMMON  l.Air. 

a  new  trial  with  the  motion   for  judgment   on  a  point 
reserved.     (Sec  Standard  Co.  v.  Phcenix  Insurana 
13  I).  R.  77  (Berks,  1902;  and  Currier  \.  Bilger,  L2  Pa. 
C.  C.  348  (Clearfield,  1892). 

20.  For  analogous  reasons,  a  motion  for  a  rule  for 
now  trial  is  usually  joined  with  every  motion  in  arrest 
of  judgment,  and  when  so  joined  the  two  motions  go 
upon  the  Now  Trial  Argument  List,  and  are  heard  to- 
gether. The  motion  in  arrest  of  judgment,  however,  is 
sometimes  made  alone,  and  in  such  ease  it  goes  upon  the 
General  or  .Miscellaneous  Argument  List.  Rohrbacker 
v.  Pugh,  10  W.  N.  C.  275  (C.  P.  4, 1881). 

21.  A  second  rule,  after  the  discharge  of  one  of  the 
same  kind,  is  not  allowed,  unless  in  very  exceptional 
cases,  and  when  applied  for,  the  fact  of  the  discharge  of 
a  previous  rule  of  the  same  kind  should  always  be  men- 
tioned, and  the  special  reasons  for  asking  a  second  rule 
set  forth.  In  default  of  this,  the  rule  will  be  discharged 
without  consideration  of  the  merits.  Mitchi  II  V.  P'u  ra  . 
1  \V.  N.  C.  156  (D.  C.  1875).  Where  rules  have  been  dis- 
charged through  unavoidable  failure  of  counsel  to  be 
present,  or  where  through  misunderstanding  the  court 
has  been  erroneously  informed  that  the  rule  was  aban- 
doned, or  where  the  situation  of  the  parties  has  so 
changed  as  to  show  on  the  present  state  of  facts  a  new 
and  strong  prima  facie  claim  to  the  relief  Bought,  a 
second  rule  is  sometimes  granted,  but  only  in  excep- 
tional and  very  char  cases. 

Where  counsel  find  al  the  hearing  that,  through  some 
defect  which  they  believe  remediable,  they  cai at  pres- 
ent succeed,  they  should  ask  leave  of  the  court  to  have 
the  rule  continued,  or  to  withdraw  it.    A  rule  thus  with 
drawn  is  not  a  bar  to  a  second  rule  of  the  same  kind, 

A   rule  mav  be  withdrawn   without    leave  ;ii   ;in\    lime 


36  MOTIONS  AND  RULES  AT  COMMON  LAW. 

before  the  argument,  but  after  the  argument  has  com- 
menced the  leave  of  the  court  must  be  obtained,  as  the 
matter  being  then  sub  judice  is  beyond  the  control  of 
the  parties.  Leave  to  withdraw  is  rarely  refused  where 
there  appears  to  be  a  good  case  and  there  is  any  fair 
prospect  that  the  present  objection  may  be  obviated; 
but  courts  do  not  favor  mere  experiments  or  fishing  in- 
quiries. For  example  a  rule  to  show  cause  why  a  rule 
to  plead  should  not  be  withdrawn,  Richards  v.  Johnson, 
14  W.  N.  C.  273  (C.  P.  1,  1884). 


MOTIONS  AND  RULES  AT  COMMON  LAW. 


VI. 


No  exhaustive  enumeration  can  be  made  of  the  vari- 
ous rules  that  may  from  time  to  time  be  required  in  the 
course  of  practice.  They  must  be  varied  by  the  skill  and 
ingenuity  of  counsel  to  meel  the  exigencies  of  new  cir- 
cumstances. But  they  all  bear  a  certain  family  like- 
ness, and  have  certain  forms  and  features  in  common. 
A  list  of  such  rules  as  arc  more  commonly  found  in 
practice  collated  from  the  various  county  court  reports 
to  date  is  now  given  and  arranged  as  nearly  as  possible 
with  regard  to  the  subjects  in  groups. 


I. 

Rules  relating  to  process. 

1.  Rule  (on  sheriff)   to  show  cause  why  he  should  not 
make  return   to  writ,17 — execute  a   ilml.     Qak 


17  This  rule  as  already  mentioned  is  no!  to  Bhow  cause,  bui  is 
peremptory  in  the  first  instance  since  the  command  of  the  writ 
is  that  the  sheriff  have  it  in  court  with  his  return  on  the  day 
named,  and  he  is  therefore  prima  facie  in  default  as  appears  by 
the  record.  If  the  sheriff  fails  to  comply  with  the  rule  n 
forceable  by  attachment,  bui  this  is  always  a  matter  of  i 
tion,  and  before  granting  it  the  court  will  hear  the  sheriff's 
reasons  for  not  returning  the  writ,  and  if  they  are  sufficient  will 
enlarge  his  time  or  give  other  appropriate  relief.  As  the  Bheriff, 
however,  is  always  held  to  a  stricl  performance  of  duty,  the 
grounds  which  are  sufficienl  for  no!  returning  a  writ  are  very 
exceptional. 


38  MOTIONS  AND  RULES  AT  COMMON  LAW. 

litzin  B.  &  L.  A.  v.  Steiger,  28  Pa.  Super.  Ct.  33G 
(1905). 

2.  Rule  to  show  cause  why  mandamus  to  magistrate 

should  not  be  awarded.  Com.  ex  rel.  v.  Smith, 
3  W.  N.  C.  95  (C.  P.  4,  1876). 

3.  Rule  to  show  cause  why  writ  should  not  be  quashed. 

BVdg.  Asso.  v.  Byrne,  6  W.  N.  C.  253   (C.  P.  1, 

1878)  ;  Comth  ex  rel  v.  Daily,  3  W.  N.  C.  133 
(C.  P.  2,  1876)  ;  Stein  met-  v.  Wade,  Ibid  187  (C. 
P.  4,  1876)  ;  In  re  Apye,  Ibid  188  (C.  P.  4,  1876)  ; 
Wheelan  v.  Stedman,  7  W.  N.  C.  17   (C.  P.  4, 

1879)  ;  Murphy  v.  Sheaf er,  11  D.  R.  426  (C.  P. 
Schuyl.  1901). 

4.  Rule  to  show  cause  why  service  of  writ  should  not 

be  set  aside.18  O'Neill  v.  Phila.  R.  T.  Co.,  14  D. 
R.  502  (Mont.  1905)  ;  Yerkes  v.  Stetson,  211 
Pa.  556  (1904). 

5.  Rule  to  show  cause  why  writ  of  Ejectment  should 

not  be  abated:  Erskine  v.  Adams,  9  D.  R.  444  (C. 
P.  West'd.,  1901). 

6.  Rule  to  show  cause  why  Appeal  by  Defendant  should 

not  be  struck  off:  Hahn  ct  al  v.  Quaker  City  Co., 


18  This  rule  is  the  only  proper  remedy  where  the  service  of 
the  writ  is  improper;  the  preceding  rule  where  the  issue  of  the 
writ  is  premature  or  unwarranted,  while  an  appearance  by  coun- 
sel is  a  waiver  of  all  irregularities  in  the  service  of  a  writ 
(Eemerrer  v.  Marl-le,  14  Pa.  C.  C.  493,  (Luzerne,  1894),  a 
defective  service  is  not  cured  by  defendant's  entering  an  appear- 
ance de  bene  esse;  Elirgood  v.  Orient  Ins.  Co.,  11  Pa.  C.  C.  GG5 
(Lack.  1891). 


MOTIONS  AND  RULES  AT  COMMON  LAW 


11  D.  R.  138  (C.  P.  5,  1901  |  ;  Ray  v.  Flemn 

11  D.  R.  tils  |  Venango,  L901  I. 

7.  Rule  to  show  cause  why  execution  and  levy  Bhould 

n«t  he  set  aside:  Hibberd  v.  '/'»/■/■//.  n  I  >.  K.  :,:•! 
(Del.  11111."))  ;  Williams  v.  Steenwood,  11  1>.  R.  l'l' 
(Bradford,  1901). 

8.  Rule  to  show  cause  why  amended  return  of  sheriff 

should  not  be  set  aside.  Whitman  \.  Higby,  K)  D. 
R.  39  (Crawford,  L900). 

9.  Rule  to  show  cause  why  service  of  capias  should  not 

be  set  aside :  King  v.  Embery, .".  \\ .  X.  <  \  !i;  i  <  5.  l\ 

3,  1878  ).19 

10.  Rule  to  show  cause  why  defendant  in  a  capias  should 
not  be  discharged  on  common  bail.-" 


11.  Rule    to    show    cause    why    capias    should    not     be 
amended.21 


19  Where  the  wrong  person  has  1  >» -•  * i i  taken  :  Lioanshy  x.  Q 
2D.  R.  220  (C.  P.  4.  1892). 

Or  if  a  married  woman  be  taken  on  capias  this  is  the  proper 
rule;  Hurst  v.  Smith,  9  W.  NT.  C.  t61  (C.  P.  l.  L880). 

20  Formerly  the  rule  t<>  show  cau t  ait  ion  and  t"  dig ' 

defendant  on  common  bail  or  to  dissolve  attachmenl  wblb  of 
greater  frequency  than  it  is  to  day,  but  since  the  abolition  of 
capias  for  debt  and  the  adoption  of  Rule  X.  Bee.  I  of  the  present 
Rules  of  Courts  of  Common  Pleas  of  Philadelphia,  requiring  an 
affidavit  of  cause  of  action  to  he  filed  before  issuing  the  capias 
in  libel,  slander,  etc.,  it  is  comparatively  little  used  except  in 
foreign  attachment. 

-'  Improper  if  objeel   is  to  add  a  uew  defendani  :  Brittin  v. 
Schloss.  9  W.  N.  C.  510  (C.  P.   !.  1880). 


40  MOTIONS  AND  RULES  AT  COMMON  LAW. 

12.  Eule  to  show  cause  why  capias  should  not  be  abated : 

McQuigan  v.  McCarthy,  6  W.  N.  C.  253  (C.  P.  2, 

1878). 

13.  Rule  to  show  cause  of  action  and  why  defendant 

should  not  be  discharged  on  common  bail : 
Phila.  Coal  Co.  v.  Huntzinger,  6  W.  N.  C.  300 
(C.  P.  4,  1878)  ;  Boyle  v.  Grady,  1  W.  N.  C.  313 
(C.  P.  2,  1875). 

14.  Rule  to  show  cause  why  attachment  should  not  be 

dissolved. 

15.  Rule  to  show  cause  why  an  appeal  should  not  be 

vacated:  Dwire  v.  Weber,  1  W.  N.  C.  64  (O.  P. 
Phila.  1874). 

16.  Rule  to  show  cause  why  service  of  the  writ  should 

not  be  set  aside : 22  Lehigh  C.  &  N.  Co.  v.  Lehigh 
Boom  Co.,  6  W.  N.  C.  222  (C.  P.  4,  1878)  ;  City  v. 


22  There  is  a  difference  not  always  observed  as  it  should  be  in 
accurate  practice  between  a  rule  to  set  aside  the  service  and  a 
rule  to  set  aside,  or,  more  properly,  strike  off  the  return  of  serv- 
ice. The  latter  is  the  correct  form  only  when  the  return  is  in- 
complete, or  inappropriate  to  the  command  of  the  writ,  or  in 
some  way  fails  to  meet  the  requirements  of  the  law,  as,  e.  g., 
where  it  shows  service  on  the  agent  of  a  non-resident  without 
showing  that  the  latter  was  engaged  in  business,  but  was  not 
personally  present  in  the  county  at  the  time.  Gilbough  v.  Keller, 
3  W.  N.  C.  78  (C.  P.  4.  1876).  On  the  other  hand,  the  return 
may  be  perfectly  good,  and  yet  the  service  set  aside,  as  e.  g.,  be- 
cause made  while  party  was  in  attendance  at  court,  Torry  v. 
Bast,  3  W.  N.  C.  63  (C.  P.  2,  1876)  ;  or  because  the  party  was 
fraudulently  decoyed  into  fhe  jurisdiction  for  the  purpose  of 
being  sued.  Hevener  v.  Heist.  9  Phila.  274  (D.  C.  1873). 
Sloan  v.  Green,  7  W.  K  C.  408  (C.  P.  4,  1878)  ;  Wood  v.  Trust 
Co.,  14  W.  N.  C.  127  (C.  P.  3,  1883). 


MOTIONS  AND  RULES  AT  COMMON   LAW.  .n 

Olive  Cemetry  Co.,  [bid.  238  (C.  P.  3,  1878  . 
Tarri/  v.  Bast, 3  \Y.  X.  C.  63  (C.  P.  2,  L876)  ;  R< 
v.  /'wff.  Ibid.  L87  (C.  P.  l.  L876)  ;  Samuel  v.  .1///. 
//•on  tl-  Shri  Co.,  in  D.  R.  i::  (C.  P.  1.  1901  l  ; 
Zablockix.  D.  L.  &  W.  R.  B.  Co.,  [bid.  54  (C.  P. 
3,  1901)  ;  Moyer  v.  Place,  [3  Pa.  C.  C.  163 
(Schuylk.,  1892);  Yeakel  v.  />'/<///</.  9  1  >.  R.  lit 
(Northampton,  1899)  ;  Ralston  v.  ro5tn,  [bid.  234 
(C.  P.  2,  Allegh.,  looo  i  ;  Ferree  v.  Piera  .  10  D. 
R.  746  (C.  P.  2,  Allegh.,  1901  i  ;  but  see  WhiU  v. 
£«»/>•,  12  Pa.  C.  C.  254  (C.  P.  3,  1893)  :  and  Ty- 
rone Bank  v.  Doty,  [bid.  287  i  Blair,  L892)  :  also 
Yerkes  v.  Stetson,  211  Pa.  556  ( 1004  i. 

17.  Rule  to  show  why  tcrrc-t<  nant  should  not  be  allowed 

to  intervene:  -"•  Rittenhouse  v.  i'<  tt<  rs,  9  W.  N.  « '. 
221:   (C.  P.  2,  1880). 

18.  Pule  to  show  cause  why  appearance  by  terre-tenant 

should  not  be  struck  off.24 

19.  Rule  to  show  cause  why  sheriffs  return  to  writ  should 

not  be  struck  off.     (See  preceding  Rule  16  and 
foot  note  thereto). 

20.  Rule  to  show  cause  why  sheriff  should  not  be  allowed 


23  This  rule  must  be  invariably  allowed  and  will  not  operate 
as  a  stay  unless  it  be  especially  bo  provided.     A  -ta\  of  pi 

ings  may  be  made  part  of  a  rule  of  course,  but  even  then  t!  i 
must  be  allowed  by  the  court  ;  it  ie  safer  practice  to  ask  for  ;i 
stay  in  almost  all  cases.  Take  for  example  where  a  rule  is  tak<  n 
to  quash  a  scire  facias,  if  the  record  Bhowa  the  plaintiff  entitled 
to  judgment,  even  though  the  rule  is  pending,  judgment  can  be 
entered  on  the  writ. 

24  A  voluntary  appearance  by  a  terre-tenant  in  a  pro 

a  scire  facias  sur  mortgage  will  be  .-truck  off;  Jlohon  \.  Wto* 
8ter,9W.  X.  C.  806  (C.  P.  2,  1880). 


42  MOTIONS  AND  RULES  AT  COMMON  LAW. 

to  amend  his  return:25  Graham  v.  Furey.  6  W. 
N.  C.  56  (C.  P.  4,  1878)  ;  Lanahan  v.  Collins,  Ibid. 
253   (C,  P.  1,  1878). 

21.  Rule  to  show  cause  why  sheriff  should  not  be  allowed 

to  sell  goods  attached — as  perishable  or  change- 
aide:  Martin  v.  Malseed,  1  W.  N.  C.  82  (D.  C. 
1874). 

22.  Rule  to  show  cause  why  actions  should  not  be  con- 

solidated:  Stanley  v.  Garrigues,  1  W.  N.  C.  28 
(D.  C.  1874)  ;  Bank  v.  Hunsicker,  2  W.  N.  C.  381 : 

(C.  P.  1,  1876). 

23.  Rule  to  show  cause  why  an  appeal  from  assessment 

of  damages  by  Viewers  in  Road  case  should  not 
be  struck  off:  Freeze  v.  Columbia  Co.,  6  W.  N.  C. 
145  (Columbia,  1878). 

24.  Rule  to  show  cause  why  defendant  should  not  have 

leave  to  enter  an  appeal  from  award  of  arbi- 
trators in  forma  pauperis:  Wendell  v.  Simpson, 
7  W.  N.  C.  31  (Montgom.,  1879). 

25.  Rule  to  show  cause  why  writ  of  replevin  should  not 

be  quashed :  Cortlandt  Wagon  Co.  v.  Landis,  9  D. 
R.  490  (Lane.  1899). 

26.  Rule  to  show  cause  why  exoneretur  should  not  be 

entered,  and  fieri  facias  be  set  aside:  Common- 


23  It  is  bad  practice  for  the  sheriff  to  incorporate  the  service  of 
a  copy  of  the  statement  of  claim  in  his  return  to  the  summons; 
Reynolds  v.  Supreme  Conclave,  9  D.  E.  622  (C.  P.  Lane.  1900). 
But  the  return  does  not  seem  to  be  invalidated  thereby. 


MOTIONS  AND  RULES  AT  COMMON  LAW. 

wealth  v.  Mecotic  et  <tl.,  12  1>.  K.  623  I  Dauphin, 
1903). 

■27.  Rule  t<>  show  cause  why  fieri  facias  should  do!  1"' 
staved,  and  judgment  l>e  satisfied:  Bradly  \. 
C.  it-  .1/.  R.  A'.  Co.,  8  D.  R.  493  (Clearf.  L899). 

28.  Rule  to  show  cause  why  writ  of  fieri  i<i<i<ix  should 

not  be  vacated,  or  set  aside:  Pannebaker  v.  Bit- 
ting, 11  D.  R.  537  (Juniata,  L903).  In  foreign 
attachment,  to  show  cause  why  Garnishee  should 
not  give  bond  and  sheriff  withdraw:  Rets  v. 
Junker,  9  W.  N.  C.  296  (C.  P.  1,  1880). 

29.  Rule  to  show  cause  why  action  should  not  he  discon- 

tinued, when  brought  by  use  plaintiff,  without  con- 
sent of  legal  plaintiff:  (1  uaranti  e  Co.  v.  Powef,  29 
W.  N.  C.  571  (C.  P.  1,1892). 


IT. 
Rules  relating  to  bail,  security,  &c. 

30.  Rule  to  show  cause  why  defendant  should  nol  be  dis- 

charged on  Common  Bail.    Sec  anU  .  p.  39.    Rule 
No.  10.) 

31.  Rule  to  show  cause  why  bail  should  not  be  reduced. 

32.  Rule  to  justify  security. 

33.  Rule  to  show  cause  why  sureties  should  not  justify 

anew:  McCrossin  v.  chirk,  1  W.  N.  C.  301   (C.  P. 

4,  1875). 


44  MOTIONS  AND  RULES  AT  COMMON  LAW. 

34.  Rule  to  show  cause  why  additional  security  should 

not  be  entered  or  writ  (of  Replevin)  quashed : 
Rowand  v.  Fox,  7  W.  N.  C.  438  (C.  P.  2,  1879)  ; 
Nittinger  v.  Alexander,  17  W.  N.  C.  284  (C.  P.  3, 

1886). 

35.  Kule  to  show  cause  why  surety's  obligation  should 

not  be  for  costs  only :  Richard  v.  Duryea,  10  W. 

N.  C.  189  (C.  P.  2,  1881). 

36.  Rule  to  show  why  security  should  not  be  struck  off 

and  order  of  approval  vacated :  Hhowaker  v.  Kelly, 
2  W.  N.  C.  95  (C.  P.  2,  1875)  ;  Kaufman  v.  Hirsh, 
9  W.  N.  C.  347  (C.  P.  1,  1881). 

37.  Rule  to  show  cause  why  sheriff  should  not  assign 

bond  after  writ  of  replevin  is  quashed:  Straus 
V.  McGouch,  10  W.  N.  C.  274  (S.  C.  1881). 

38.  Rule  to  justify  plea  of  freehold. 

39.  Rule  to  show  cause  why  plea  of  freehold  should  not 

be  struck  off:  Jenks  v.  Grace,  1  W.  N.  C.  20  (D. 
C.  1874)  ;  Penn  Bank  v.  Crawford,  2  W.  N.  C. 
371  (Allegh.,  1875)  ;  Ellis  v.  Cadwalader,  12  W. 
N.  C.  304  ( C.  P.  2,  1882 ) .  Or  as  to  one  defendant 
only:  Banking  Co.  v.  Wolleston,  1  W.  N.  C.  27 
(D.  C.  1874). 

40.  Rule  to  show  cause  why  claimant  (in  interpleader) 

should  not  be  allowed  to  file  his  own  bond  without 
surety.26 


26  The  established  form  of  affidavit  in  support  of  this  rule  is, 
that  the  claimant  is  the  sole  owner  or,  at  least,  that  defendant 


MOTIONS  AND  RULES  AT  COMMON  LAW.  4;, 

41.  Rule  to  show  cause  why  our  bond  in  several  inter- 
pleaders pending  al  same  time  should  qoI  be  ac- 
cepted: Richardson  v.  Brunswick,  LO  \\ .  \.  0. 
si   (C.  P.  3,  1881  i. 


in  the  execution  has  no  interest,  is  in  possession,  and 
derive  his  title  to  tin1  goods  from  or  through  the  defendant,  <>r 
that  he  derived  title  through  purchase  at  a  judicial  sale  of  the 
goods.  Becker  v.  Miller,  1  W.  X.  C.  83  ( 1>.  C.  1874).  The  best 
practice  is,  not  only  to  make  tlu-  affidavit  in  hcec  verba,  but  also  to 
set  out  affirmatively;  how  the  claimant  docs  derive  title.  When 
the  affidavit  is  in  this  form,  it  is  usually  accepted  as  sufficient 
without  depositions,  and  the  rule  is  made  absolute  a-  of  course. 
Bank-  v.  Sharp,  1  W.  X.  C.  G  (D.  C.  1874).  Can-,  however,  is 
not  always  taken  to  follow  the  established  form,  and  language  i- 
not  unfrequently  used  which  counsel  consider  equivalent,  especi- 
ally as  to  the  portion  supra  in  italics.  This  is  bad  practice  and 
sometimes  dangerous.  The  privilege  of  giving  bond  without 
security  is  matter  of  grace,  and  when,  as  in  this  case,  there  is  a 
long-settled  and  exact  form,  any  departure  from  it  is  apt  to  he 
looked  at  with  suspicion.  Even  where  the  affidavit  is  in  proper 
form  the  court  will,  if  any  ground  of  suspicion  or  collusion  is 
alleged  by  the  plaintiff,  order  depositions,  and  unless  claimant's 
title  is  prima  facie  very  clear  will  refuse  the  privilege.  Bailey  v. 
Vehmeier,  6  \V.  N.  C.  271  (C.  P.  3,  1878)  ;  Landsdorf  v.  Bach, 
1  \V.  X.  ('.  1  17  (D.  C.  1875)  ;  Hart  man  v.  Schofteld,  1  W.  \.  ('. 
154  (D.  C.  1874).  Landell  v.  Eager,  1  I  W.  X.  ('.  L73  (C.  1'. 
1,  1884)  ;  Clymcr  v.  Shaw,  1  D.  ft.  164  (C.  P.  3,  L892). 

The  bond  of  a  foreign  corporation  or  of  a  non-resident  will 
not  be  accepted  without  security;  Scatchard  v.  Landenberger,  l" 
W.  X.  C.  152  (C.  P.  2,  1881  ;  (Emerson  v.  Qrattan,  1  W.  V  C 
574  (C.  P.  4,  1878);  nor  that  of  a  married  woman  claimant; 
Barrett  v.  Gross,  2  W.  X.  C.  324;  (C.  I'.  I.  L876)  j  Ward  v. 
Whitney,  5  \\\  X.  ('.  192  (C.  1'.  I.  1878);  aor  the  husband's 
when  he  is  defendant  in  the  execution  (Barrett  v.  Oross,  supra). 
But  a  married  woman  who  i<  a  feme  sole  trader,  stands  "ii  a  dif- 
ferent footing.     See  cases  cited  under  X".   l">. 

In  City  v.Hitner,  '.»  W.  X.  C.  -Ml  (C.  I'.  '.  L881  I,  >:  I  t\  of 
Philadelphia  claimant  in  interpleader  was  required  to  enter 
bond. 

A  purchaser  from  an  assignee  for  benefit  of  creditors  of  de- 
fendant is  prima  facie  entitled  to  give  his  own  bond;  Smith  v. 
Stoddart,8W.  NT.  C.  390  (C.  P.  2,  1880).    So  is  a  husband  when 


46  MOTIONS  AND  RULES  AT  COMMON  LAW. 

42.  Rule  to  show  cause  why  claimant  in  interpleader* 

shall  not  be  permitted  to  give  bond  in  double 
amount  of  judgment,  (where  the  goods  are  of 
greater  value)  :  Ellis  v.  Jester,  7  D.  R.  277  (C. 
P.  4,  1898). 

43.  Rule  to  show  cause  why  married  woman,  claimant 

in  interpleader,  who  is  a  feme  sole  trader  should 
not  give  her  own  bond:  Seeger  v.  Morhinweg, 
2  W.  N.  C.  406  (C.  P.  2,  1876)  Nice  v.  Hing,  4  W. 
N.  C.  478  (C.  P.  1,  1877)  Hahs  v.  Schmcyer,  6  W. 
N.  C.  271  (C.  P.  3,  1878)  or  why  claimant  in 
interpleader  should  not  be  allowed  to  enter 
security  in  double  the  amount  of  value  of  goods 
taken  in  execution:  Com.  to  use  v.  Chapman, 
6  W.  N.  C.  15  (C.  P.  1,  1878). 


III. 
Rules  relating  to  attorneys. 

44.  Rule  on  counsel  to  file  his  warrant  of  attorney27 

45.  Rule  on  counsel  to  show  cause  why  he  should  not 

file  a  sufficient  warrant  of  Attorney.      (Citizen's 
Bank  v.  Keim,  1  W.  N.  C.  263  (C.  P.  1,  1875). 


his  goods  are  levied  on  as  wife's;  Phillips  v.  Quigley,  9  W.  N.  C. 
511  (C.  P.  2,  1881).  And  also  a  consignor  whose  goods  are  levied 
on  as  property  of  a  commission  merchant;  Landenberger  v. 
Landeriberger,"  16  Phila.  11  (C.  P.  1.  1883).  But  not  a  tenant 
in  common;  Vent  v.  PasMey,  9  W.  N".  C.  559  (C.  P.  2,  1881). 
27  By  the  act  of  April  14,  1834  (P.  L.  354),  sec.  71;  the  at- 
torney "  shall  if  required  "  file  his  warrant  and  by  the  established 
construction  of  the  act  it  is  a  matter  of  right  if  applied  for  in 


MOTIONS  AND  RULES  AT  COMMON  LAW.  }; 

46.  Rule  to  show  cause  why  paper  purporting  to  be  a 

warrant  of  Attorney  should  not  be  struck  from 
the  record.  Hess  v.  Hess,  1  \\ '.  N.  C.  l'.'i  (C. 
P.  4,  L875) ;  Irrim  \.  Dowling,  9  W.  N.  C.  306 
(C.  P.  2,  L880)  :  Mintzer  v.  Mintzcr,  11  W.  N.  C. 
4(io  (C.  P.  2,  1882  i  ;  D.  /..  d  W.  /.'.  K.  v.  Rfcoad<  *, 
180  Pa.  L57  I  1897). 

47.  Rule  to  set  aside  service  of  summons  on  an  attorney  : 

Young  v.  Armstrong,  13  W.  N.  C.  313  (C.  P.  2, 

1883). 

48.  Rule  to  show  cause  why  counsel  should  not  withdraw 

his  appearance.  Wright  v.  Galloway,  8  W.  N. 
C.  163  (C.  P.  :(»,  1880). 

This  rule  is  always  at  the  instance  of  the  attorney  himself. 

49.  Rule  to  show  cause  why  entry  of  appearance  should 

not  be  struck  off.28  Freiburg  v.  Reliana  Co.,  1 
W.  N.  C.  193  (C.  P.  3,  1875). 


time  (Sheetz  v.  White,  7  W.  X.  C.  590,  C.  P.  1.  L879)  :  Campbell 
v.  Galbreath,  5  Watts.  426;  Mercier  v.  Mercier,  2   I 'all.   L42). 
In  C%  v.  Strawbridge,  1  W.  N\  C.  215  (C.  P.  4, 1877) ;  couns<  1 
made  a  motion  for  the  rule.    This  was  an  unnecessary  precaut- 
ion as  it  is  now  a  rule  absolute  in  the  first  Instance  and  Btays  pro- 
ceedings, Reese  v.  The  Church,  1   W.  N".  C.  416  (C.  P.  4,  IS 
although  in  Campbell  v.  Galbreath,  supra,  \\  was  not  bo  held. 
The  contest  in  none  of  the  reported  cases  seems  to  havi 
otherwise  than  on  the  sufficiency  of  the  warrant,  Citizens'  Bank 
v.  Keim,  supra;  Hess  v.  Hess,  Ibid,  r.'l  (C.  P.  I.  L875).     M 
7^.  #.  Co.  v.  Southern  B.  11.  Assn.,  s  Phila.   10*3    (D.  C.   L871) 
jg<erner  v.   Beefcer,  15   W.    N.   C.   519    (C.    P.   3,    L885).      In 
Divorce,  Rule  16,  sec.  9,  Rules  of  Courts  C.   P.   Phila.  p.   73. 
appearance  by  counsel  for  respondenl  must  be  made  by  filing  a 
duly  acknowledged  Letter  of  Attorney. 

28  Notice  of  tins  rule  musl    be  duly  served   no!   only  on  the 
client,  hut  also  on  the  opposite  party  or  his  counsel,  who  has  an 


48  MOTIONS  AND  RULES  AT  COMMON  LAW. 

50.  Rule  on  attorney  to  show  cause  why  he  should  not 

be  stricken  from  the  roll :  In  re  Ingersoll,  1  W.  N. 
C.  18  (D.  C.  1875)  ;  In  re  Derringer,  1  W.  N.  C. 
200  (C.  P.  1,  1877). 

51.  Rule  to  show  cause  why  order  admitting  an  attorney 

to  practice  should  not  be  vacated :  In  re  O'Grady, 
4  W.N.  G.  199  (O.  P.  1,1877). 

52.  Rule  on  an  attorney  to  show  cause  why  he  should 

not  produce  papers :  Com.  v.  Moyer,  11  W.  N.  C. 

31  (Q.  S.  1881). 

IV. 

Rules  relating  to  the  pleadings. 

53.  Rule  to  show  cause  why  suit  should  not  be  marked 

to  the  use  of  plaintiff's  assignee  in  bankruptcy: 
Cottrell  v.  Mann,  1  W.  N.  C.  157  (D.  C.  1875). 

54.  Rule   to  show   cause   why  assignee   in   bankruptcy 

should  not  be  admitted  to  prosecute  in  his  own 
name:  Silk  Co.  v.  Disston,  7  W.  N.  C.  63  (C.  P.  2, 

1879). 

55.  Rule  by  terre-tenant  (or  other  privy  )to  show  cause 

why  he  should  not  be  admitted  pro  inter  esse  suo 
and  defend.29 


interest  that  the  status  of  the  suit  should  not  be  changed  to  his 
possible  detriment  without  his  being  heard  in  the  matter. 

This  rule  is  proper  where  a  party  disputes  the  right  of  an 
attorney  to  appear  for  him  or  has  discharged  his  counsel  and 
employed  another. 

29  A  voluntary  or  unauthorized  appearance  by  terre-tenant  or 
other  will  be  on  proper  application  be  struck  off;  Hobson  v.  Web- 
sUr,  9  W.  K  C.  206  (C.  P.  2,  1880). 


MOTIONS  AND  RULES  AT  COMMON  LAW.  49 

50.  Rule  to  declare  (or  plead)   within  the  times  regu- 
lated by  Act  of  Assembly  or  Rule  of  Court.80 


57.  Rule  to  show  cause  \vhv  Plaint  ill'  should  QOl   be  al- 

lowed to  withdraw  a  rule  to  plead:  Richards  v. 
Johnson,  14  W.  N.  C.  273  (C.  P.  1.  1884  }. 

58.  Rule  to  show   cause  why   the   time   within    which 

depositions  are  ordered  to  be  tiled  should  nol  be 
enlarged. 

59.  Rule  to  show  cause  why  rule  to  plead,  etc.,  should 

not  be  struck  off.:u     Stoeckle  v.  Stoeckle.  2  \Y. 


30  A  rule  to  plead  cannot  be  obtained  pending  the  determin- 
ation of  one  for  a  Bill  of  Particulars ;  Pfaelzer  v.  Pullman,  2  \V. 
N.  C.  324  (C.  P.  4,  1876). 

Formerly  rules  to  extend  the  time  to  file  pleas,  etc.,  were  very 
common,  but  since  the  act  of  May  31,  L887  (  P.  L.  2T1 ).  they  are 
not  so  frequently  seen  on  the  lists.  That  ad  fixed  the  time 
when  the  affidavit  of  defence  must  be  filed  and  it  is  beyond 
the  power  of  the  court  to  enlarge  it.  The  only  remedy  is  to 
apply  to  open  the  judgment  if  one  is  entered  in  default.  It  is 
dangerous  to  give  one's  reason  for  failure  to  file  an  affidavit  of 
defence  in  an  affidavit  for  judgment,  for  want  of  sufficiency,  will 
surely  be  given  and  in  the  case  of  a  plea  it  is  wholly  impossible 
to  do  so,  but  it  is  difficult  to  imagine  circumstances  which  would 
render  it  infeasible  to  plead. 

31  Barclay  v.  Barclay,  2  \Y.  X.  C.  t78  (C.  P.  -'.  1876),  was  a 
suit  in  assumpsit  to  recover  rent;  a  narr  in  the  COmmOD  courts 
was  filed  on  May  13,  1870,  on  Mar.h  1,  1876,  a  second  narr,  de- 
claring for  use  and  occupation  was  filed  ;  a  rule  to  Btrike  off  the 
second  narr  was  made  absolute,  for  the  reason  that  defendant 
was  in  peril  of  two  judgments  against  him  and  certain  of  one,  as 
the  issue  raised  in  either  would  prevenl  successful  defence  <>f 
one  or  the  other.  The  act  of  May  21,  1887,  obviates  Buch  a  con- 
dition. 

The  rub-  to  strike  off  is  pertinenl  where  the  plea  is  filed  too 
late,  or  not  accompanied  by  a  required  affidavit  ;  Holxer  v.  Byrn9, 
4 


50  MOTIONS  AND  RULES  AT  COMMON  LAW. 

N.  C.  534  (C.  P.  1,  1876)  ;  Barley  v.  Albertson, 
Ibid.  541  (C.  P.  4,  1876)  ;  Moyer  v.  Loeb,  3  W.  N. 
C.  95  (C.  P.  2,  1876) ;  Kern  v.  BocHus,  6  W.  N. 
C.  135  (C.  P.  3,  1878) ;  Watts  v.  Ward,  Ibid.  206 

(C.  P.  2,  1878). 


60.  Rule  to  show  cause  why  plea  should  not  be  with- 

drawn :  Adams  v.  Kehoe,  1  W.  N.  C.  232  (C.  P.  2, 

1875). 

61.  Rule  to  show  cause  why  defendant  should  not  be 

permitted  to  file  an  additional  plea:   Weiler  v. 
Lockheim,  6  W.  N.  C.  191  (C.  P.  1,  1878 ).32 

62.  Rule  to  show  cause  why  statement  of  claim  should 

not  be  amended.33 


10  W.  N.  C.  101  (C.  P.  2,  1881).  Gallagher  v.  Thornley,  10 
W.  N.  C.  189  (C.  P.  2,  1881). 

As  to  pleas  in  bar  the  court  will  only  strike  off  when  manifest- 
ly against  the  rules  of  pleading,  e.  g.,  special  pleas  which  amount 
to  the  general  issue,  or  in  violation  of  the  act  of  May  21,  1881, 
or  if  it  be  frivolous  or  inappropriate  to  the  action;  Holtz  v. 
Thompson,  12  W.  X.  C.  386  (C.  P.  2,  1882).  Unless  such 
reason  clearly  appears  the  rule  will  be  disregarded  and  plaintiff 
put  to  his  demurrer;  Beckford  v.  Ice  Co.,  7  W.  N.  C.  16  (C.  P.  2, 
1879). 

If  on  demurrer  the  court  thinks  defendant  has  been  intention- 
ally trifling  or  delaying  the  case,  it  will  give  final  judgment 
against  him. 

32  This  rule  is  unusual,  for  although  in  theory,  the  leave  of 
court  must  be  had  when  defendant  desires  to  file  more  than  one 
plea,  the  ordinary  practice  is  to  assume  the  leave  and  put  the 
plaintiff  to  his  rule  to  strike  off. 

33  This  rule  is  unnecessary  until  affidavit  of  defence  or  plea  is 
filed,  it  is  a  matter  of  right  for  plaintiff  to  amend  his  statement 
conferred  by  the  spirit  if  not  the  letter  of  the  act  of  1806. 


MOTIONS  AND  RULES  AT  COMMON  LAW.  M 

63.  Rule  to  show  cause  why  defendant  should  not  have 

leave  to  file  a  supplemental  affidavit  <«f  defence. 

64.  Role  to  show  cause  why   the  record  shall   do!   be 

amended  by  correcting  errors  in  names  <>f 
parties, 

65.  Role  on    plaintiff  to  furnish  bill  <>f  particulars,  • 

Furbush  v.  Phillips,  2  W.  N.  C.  L98  (C.  P.  2, 
1875)  ;  Borda  v.  B.  B.  Co.,  3  W.  X.  C.  351  (C.  P. 
4.  L877)  ;  Carr  v.  Heacock,  L2  W.  X.  C.  305  I  C.  P. 
4.  1882). 

«'•»'».  Rule  t«»  show  cause  why  plaintiff  should  not  furnish 
a   more  specific   bill   <>f  particulars:   Hunter  v. 


34  The  power  of  the  court  to  grant  such  a  rule  is  given  by  the 
Act  of  April  16,  is  is.  p.  |,.  353,  and  may  be  i  sercised  where  it 
is  sought  to  strike  out  an  initial  in  defendant's  name  and  adding 
another  name  but  proof  of  service  of  the  rule  on  Buch  party  must 
be  made  at  the  return  of  the  rule;  M'Glinn  v.  Johnson,  1  W.  \. 

C.  312  (('.  I'.  1.  L875).     Also  where  an  iinineorporati 

is  plaintiff  the  amendment  asked  is  to  add  the  names  of  the 
individual  members  of  the  association ;  Sheba  Berry  17 

W  .X.  C.  223:   (C  P.   1.  1885).     Same  in  case  of  defendant; 
Eirsch  v.  Kohn,  10  W.  \.  c.  v:;;   (C.  P.  -'.  L881  ). 

'The  call  for  a  bill  of  particulars  is  strictly  no  pari  of  the 
record,  but  matter  in  pais,  however,  to  avoid  disagreements  be- 
tween counsel  on  the  subject,  the  better  pra<  t  i<  e  is  to  enter  a  rule 
formally:  ordinarily  the  rule  is  of  course  absolute  in  the 
first  instance.  This  rule  operates  as  a  Btay  of  pr 
Pfaelzer  v.  Carho,  2  \V.  \".  c.  324  (C.  P.  I.  1876).  Prior  I 
Act  <if  May,  25,  L878,  P.  L.  156,  the  rule  w&b  nisi  in  divorce  but 
that  act  gives  the  respondent  the  right  to  the  rule. 

The  fact  that  the  statement  of  claim  has  been  sustau 
demurrer  does  not   deprive  defendant   of  right   to  bill  of 
ticulare;  Fishborn  v.  N.  )'.  C.  fi.  B.  (13  D.  R.  (        i     I     i     9 
K.   1 1.   Pa.   1904. )     Th<  a  it-  discrei  ion  n 

motion   direct    a   bill   of   particulars;  Caruthsn   v.   Pierie,    13 

D.  If.  780  (C.  P.  3,  1904). 


52  MOTIONS  AND  RULES  AT  COMMON  LAW. 

Burnham,  1  W.  N.  C.  74  (D.  C.  1874) ;  Titus  v. 
Baird,  Ibid.  81  (D.  C.  1874)  ;  Patterson  v.  Jones, 
Ibid.  153  (D.  C.  1874)  ;  Livingston  v.  Enochs,  2 
W.  N.  C.  244  (C.  P.  2,  1875)  ;  Nichols  v.  Edwards, 
8  W.  N.  C.  470  (C.  P.  1,  1880)  ;  Zrcs.  Co.  v.  fionfc, 
12  W.  N.  C.  251  (C.  P.  2,  1882). 

67.  Rule  to  show  cause  why  defendant  should  not  fur- 

nish a  bill  of  particulars  under  the  plea.36  Reed 
v.  Church,  7  W.  N.  C.  79  (C.  P.  2,  1879). 

68.  Rule  to  show  cause  why  bill  of  particulars  should 

not  be  amended. 

69.  Rule  to  show  cause  why  nonsuit  should  not  be  en- 

tered for  failure  to  furnish  bill  of  particulars  or 
more  specific  bill  of  particulars. 

70.  Rule  to  show  cause  why  plaintiff  should  not  file  a 

more  specific  statement  of  claim.  Diehl  v. 
Bockius,  1  D.  R,  479  (C.  P.  1, 1892)  ;  Dow  v.  Will- 
iams, 4  D.  R.  659  (C.  P.  1, 1895)  ;  Doriott  v.  Hag- 
eman,  21  W.  N.  C.  556  (C.  P.  2,  1888).37 

71.  Rule  to  show  cause  why  plaintiff  should  not  be  or- 

dered to  proceed  in  foreign  attachment.  (E.  g., 
by  issuing  scire  facias  against  garnishees)  :  Finch 


36  Since  the  Act  of  May  21,  1887,  P.  L.  271,  this  rule  is  of 
doubtful  use,  for  in  cases  in  assumpsit  a  rule  for  judgment  for 
want  of  a  sufficient  affidavit  of  defence  would  accomplish  the 
same  result  and  in  trespass  it  is  not  available,  because  by  section 
7  of  this  act  special  pleading  is  abolished  and  its  use  formerly 
was  restricted  to  these. 

37  This  rule  does  not  require  an  allocatur,  but  must  be  to 
show  cause;  LeeJcvrs  v.  Rea,  29  W.  N.  C.  65  (C.  P.  2,  1891). 


MOTIONS  AND  RULES  AT  COMMON  LAW. 

v.  Bullock,  1  W.  X.  C.  263  (C.  P.  L,  L875)  ;  /•' 

v.  Dads,  l  D.  K.  438  (C.  P.  1.  L892). 


72.  Rule  on  garnishee  to  answer  interrogatorii  s, 

73.  Rule  on  garnishee  to  show  cause  why  he  should  nol 

file  a  more  specific  answer.88 

74.  Rule  (on  behalf  of  garnishee)  why  interrogatories 

and  rule  should  n<>i  be  struck  off:  Klett  v.  Craig, 
1  W.  N.  C.  liMl,  (S.  C.  1874)  ;  Yerkes  v.  fiftmonSj 
I  hid  473  (C.  P.  4,  1875). 

75.  Rule  (on  behalf  of  garnishee   it<>  show  cause  why 

rule  to  answer  interrogatories  should  not  be  dis- 
charged: Phila.  Textile  Co.  v.  Strause,  !»  1>.  R.  1 1 
(C.  P.  4,1899). 

76.  Rule  (on  behalf  of  garnishee)   to  show  cause  why 

garnishee's  counsel  fee  should  not  be  paid:  Wan- 
amaker  v.  Fit:  put  rick,  10  1).  R.  LM.U  (C.  P.  L, 
1901). 

77.  Rule  to  show  cause  why  garnishee  should  ool  pay 

into  court  enough  to  cover  attachment  and  pay 
the  vest  to  creditor:  Morehouse  v.  Ins.  Co.,  L6  W. 
N.  C.  34  (C.  P.  2,  1885). 

7s.  Rule  (by  sheriff)   to  show  cause  why  interpleader 


38  This  and  the  preceding  rule  should  contain  the  alternative 
penalty  for  non-compliance  within  the  usual  time  when,  upon 
proof  of  service  of  the  rule,  upon  failure  to  comply  judgment 
may  be  entered  on  motion  in  the  prothonotary'fl  office:  Fisher  \. 
Blenn,  2  W.  N.  C.  172,  (C.  P.  K  1876). 


54:  MOTIONS  AND  RULES  AT  COMMON  LAW. 

should  not  be  ordered.39     Waterman  v.  Langdon, 
15  Phila.  211. 


79.  Rule  for  issue  on  sheriff's  interpleader  under  Act  of 

May  26,  1897,  P.  L.  93.40 

80.  Rule  to  show  cause  why  defendant  should  not  have 

leave  to  pay  money  into  Court  and  the  claimants 
thereto  be  compelled  to  interplead.41  Tande- 
grift  v.  Freeman,  1  W.  N.  C.  109  (D.  C.  1874)  ; 
Loughlin  v.  McCormick,  2  W.  N.  C.  352  (C.  P.  2. 
1876)  ;  Wasseman  v.  Bank,  3  W.  N.  C.  475  (C.  P. 
4,  1877). 

81.  Rule  to  show  cause  why  declaration,  bond,  etc.,  in 

interpleader  should  not  be  struck  off.  Hallowell 
v.  Schnitzer,  6  W.  N.  C.  469  (C.  P.  2,  1879). 

82.  Rule  to  show  cause  why  copies  should  not  be  substi- 

tuted for  lost  papers  of  record.42  Kline  v.  Schaf- 
fer,  1  W.  N.  C.  63  (D.  C.  1874). 


39  This  rule  being  in  relief  of  the  sheriff  under  the  Act  of  April 
16,  1848,  P.  L.  441,  is  favored  by  the  courts  and  by  long  estab- 
lished custom  is  made  absolute  on  its  return.  It  is  granted  only 
at  the  instance  of  defendant ;  Swift  Co.  v.  Fleming,  et  al.,  12  D. 
E.  287  (Clear!  1902).  The  claimant  must  file  a  formal  state- 
ment; Provost  v.  Algeo,  8  D.  R.  517.  (C.  P.  1  Allegh.  1899). 

40  This  act  has  no  application  in  the  case  of  domestic  attach- 
ment; M'Cullough  v.  Linn,  8  D.  R.  378:  (Cumberland  1899). 
If  no  answer  is  made  to  the  rule  it  will  be  made  absolute  by  the 
court;  Meyer  v.  Jeske,  8  D.  R.  239  (Pike,  1898). 

41  This  is  the  correct  rule  for  a  garnishee  to  take,  who  has 
been  served  with  several  attachments:  Wilbraham  v.  Horrocks, 
8  W.  N.  C.  285  (C.  P.  4,  1880). 

42  As  to  duplicate  of  lost  writ,  see  Hope  Association  v.  Dun- 
ham, 5  W.  N.  C.  148  (C.  P.  2,  1878). 


MOTIONS  AND  RULES  AT  COMMON  LAW 

83.  Rule  to  show  cause  why  impertinent  matter  in  the 

pleadings  »>f  record  should  not  be  struck  out     .1. 

('.  v.  B.  C,  1  W.  X.  C.  372  (C.  P.  I.  L875)  ;  !/<><  /- 
ling  v.  .V(//-.  Co..  4  \Y.  X.  C.  72  (C.  P.  :'.,  L877). 

84.  Rule  to  show  cause  whv  exceptions  to  auditor's  re- 

port should  not  be  struck  off.     Croft's  Est.  14 
W.  N.  C.  437  (C.  P.  2,  1884). 


V. 

Rules  relating  to  evidence. 

85.  Rule  to  produce  books  aud  papers  at  trial.43  Rol- 
lers v.  Dunbar,  1  \Y.  X.  C.  313  (C.  P.  2,  1875)  : 
Bank  v.  Power,  2  W.  X.  C.  275  (C.  P.  I.  L876)  ; 
Preston  v.  Sarmiento,  4  W.  X.  C.  89   (C.   P.  2, 


"Under  act  of  Feb.  27,  1798,  3  Sm.  L.  303,  by  long  settled 
practice  this  is  a  thirty  day  rule;  the  rule  is  nol  necessarily  an 
allocatur  but  the  reason  for  the  rule  should  specifically  state  the 
interest  of  the  party  asking  it.  the  information  desired  and  the 
object  to  be  attained.  Thomas  v.  Lansdale  &  Norristovm  /.'.  /.'. 
R.  Co.,  13  I).  H.  803  (Montgom.  L894).  This  rule  is  proper 
where  a  paper  which  plaintiff  requires  to  prepare  his  statement 
of  claim  is  in  possession  of  defendant  to  procure  a  copy  (Pi080 
v.  Equitable  L.  A.,  L2  D.  H.  51  ('.  P.  Lane.  1903).  Bui  if  can 
not  be  enforced  in  an  action  for  libel  (Rogers  v.  Dun,  8  I  >.  If. 
tilt'.,  1899).  Xor  against  an  assignee  for  benefit  of  creditors 
(Hazletfs  Est.,  S.  I).  R.  201,  L899).  Nor  can  the  common- 
wealth employ  it  to  compel  defendant  in  an  indictment  for  libel 
to  produce  the  paper  which  is  the  subject  of  the  indictment 
(Com.  v.  Meades,  11  D.  R.  10  Q.  S.  York,  L901).  Produc- 
tion of  books,  etc.,  may  be  compelled  by  Bill  of  Discover} 
(Reed  v.  Stevenson,  6  W.  \.  C.  173,  C.  P.  I.  1878).  Bui  not 
in  an  action  on  penalty  (Boyle  v.  Smithman,  146  Pa. 
Ladenburg  v.  /'.  /.'.  II.  Co.,  6  D.  R.   153  (C.  P.  L.  189^  I. 


56  MOTIONS  AND  RULES  AT  COMMON  LAW. 

1877)  ;  Moelling  v.  Lehigh  Co.,  9  Phila.  223  (D.  C. 
1874). 


86.  Rule  to  take  depositions.44 

87.  Rule  to  show  cause  why  an  order  should  not  be 

made  directing  the  attendance  of  opposite  party 
as  witness.  Oirard  Ins.  Co.  v.  Mut.  Ins.  Co.,  10 
W.N.  C.  136  (C,  P.  3,  1881). 

88.  Rule  to  show  cause  why  opposite  party  should  not 

be  examined  under  deposition.  Bank  v.  Bryan, 
15  W.  N.  C.  468  (C.  P.  1,  1884). 

89.  Rule  to  show  cause  why  party  should  not  file  names 

of  witnesses  to  be  examined  under  a  commission. 
Cot.  Co.  v.  Stemberger,  12  W.  N.  C.  290  (C.  P.  1, 

1882). • 

90.  Rule  to  show  cause  why  time  for  taking  testimony. 

(as  c.  g.,  under  a  commission,  should  not  be  ex- 


44  Under  rule  15,  sec.  1  (Rules  of  Courts  of  Common  Pleas, 
Philadelphia  County),  depositions  taken  under  rule  may  be  read 
at  trial  of  the  cause  in  case  of  the  death,  absence  from  state  or 
"  other  legal  inability  of  witness  to  attend." — But  the  deposition 
of  a  witness  who  has  a  residence  in  the  state  and  within  forty 
miles  of  the  place  of  trial  unless  the  court  is  satisfied  that  the 
witness  cannot  be  produced  at  the  trial.  Production  of  papers, 
etc.,  will  not  be  required  at  the  taking  of  depositions,  although 
they  will  be  at  the  trial  Raul  v.  Van  Horn,  133  Pa.  573; 
Penna.  Co.,  etc.  v.  G.  &  N.  R.  R.  Co.,  20  Phila.  332  (C.  P.  4, 
1891).  This  rule  is  absolute  and  of  course  under  the  rules  and 
regulations  established  by  the  courts,  but  when  it  is  desired  to 
vary  from  these  an  allocatur  must  be  obtained  M'Ouigan  v. 
Swayne,  1  W.  N.  C.  41  (D.  C.  1874). 


MOTIONS  AND  RULES  AT  COMMON   LAW.  ,; 

tended.)  Lowenstein  v.  Bimbaum,  6  \Y.  N.  C. 
452  (C.  P.  4,  1879). 

91.  Rule  to  show  cause  why  deposition  of  a  party  should 

not  be  taken  as  if  in  cross  examination.  Asch.  v. 
W.  P.  A\  A'.  Co.,  4  W.  X.  <\  571  (C.  I'.  2,  L877) ; 
Amend,  to  Rule  of  Court,  xv..  sec.  18,  5  W.  X. 
C.  14  (C.  P.  Phila.  L878). 

92.  Rule  to  show  cause  why  depositions  should  nol  I"- 

filed.  Vanarsdalen  v.  Dickerson,  2  \\ .  X.  <\  ill 
(C.  P.  1,  1875)  ;  Johnson  v.  /'.  A'.  A'..  5  \Y.  X.  <  \ 
360  (C.  P.  1, 1878)  ;  O'Connor  v.  Wet  fcs,  L0  W.  \. 
C.  372  (C.  P.  4,  1881) ;  Rogers  v.  Gilmore,  13  W. 
N  C.  193  (C.  P.  2,  1883). 

93.  Rule  to  show  cause  why  auditor  should  nol  file  tes- 

timony. Miller  v.  Trimble,  1  W.  X.  C.  390  (C. 
P.  3,  1875)  ;  McMullin's  Est.,  Ibid.  432  (C.  P.  3, 

1875). 

94.  Rule  to  show  cause  why  written   instrument,   the 

cause  of  action,  should  not  be  transmitted  with 
commission  for  inspection  by  witness.  Kohn  v. 
Teller,  2  W.  X.  C.  487  (C.  P.  2,  1875). 

95.  Rule  to  show  cause  why  Letters   Rogatory  should 

not  issue.45  Wilkinson  v.  Starr,  Kl  W.  X.  C.  '-'>~> 
(C.  P.  2,  1885). 


48  Under  rule  of  court  15,  sec.  8  (Rule  Court e  Comn 
Philadelphia  Co.,  p.  ii!»),  written  interrogatories  must  be  an* 
oexed,  the  court  will  not  lend  aid  t<>  the  execution  <>f  letters 
rogatory  by  a  viva  voce  examination  Doubt  \.  /'.  <&  /..  E,  /.'.  /.'. 
C,  6  D.  R.  238  (C.  P.  1,  Allegh.  L897). 


58  MOTIONS  AND  RULES  AT  COMMON  LAW. 

VI. 

Rules  relating  to  trial. 

96.  Rule  to  show  cause  why  a  new  trial  should  not  be 

granted.46 

97.  Rule  to  show  cause  why  nonsuit  should  not  be  taken 

off.    Riggin  v.  Beckie,  9  D.  R.  439  (C.  P.  4, 1900). 

VII. 

Rules  relating  to  verdict  and  assessment  of  damages. 

98.  Rule  to  show  cause  why  the  verdict  should  not  be 

amended.  Paul  v.  Caughlin,  1  W.  N.  C.  390 
(C.  P.  4,  1875)  ;  Carl  v.  mine,  14  D.  R.  534  (C. 
P.  Columbia,  1905). 

99.  Rule  to  show  cause  why  verdict  should  not  be  set 

aside.  McCauley  v.  McCaulcy,  4  W.  N.  C.  402 
(C.  P.  4,  1877),  or  struck  off.  Elliot  v.  Mullen, 
1  W.  N.  C.  314  (C.  P.  4,  1875). 

100.  Rule  on  plaintiff  to  elect  to  remit  a  portion  of  the 

verdict  [naming  amount]  or  have  a  rule  for  new 


46  By  rule  27  (Rule?  of  Courts  of  Common  Pleas  of  Phila- 
delphia County,  p.  123).  this  rule  must  be  taken  within  four 
days  after  the"verdict:  this  time  as  computed  excludes  the  day 
of  the  trial;  and  the  bill  of  exceptions  to  the  rulings  of  the  court 
during  the  trial  must  be  presented  to  the  court  for  signing 
within  ten  days  after  the  verdict  Gastman  v.  U.  T.  Co.,  13  D. 
E.  210  (C.  P.'  1,  1904). 


MOTIONS  AND  RULES  AT  COMMON  LAW. 

trial  made  absolute.     Keating  v.  /.'.  /,'.  (  .,..  :,  \y. 
N.  C.  232  (C.  P.  2,  1878). 


101.  Rule  to  show  cause  why  the  assessment  of  damages 

made  by  the  Prothonotary  od  a  judgmenl  should 
not  be  vacated.41  Siner  v.  Henderson,  l  \\ .  N. 
C.  i>4  i  1).  C.  1874)  ;  Terry  \.  Slemmer,  11  \V.  \. 
C.  155  (C.  P.  2,  1881  i  ;  Bldg.  Asso.  v.  SchulU  r,  3 
W.  N.  C.  431  (C.  P.  1, 1877) ;  Bldg.  Assn.  v.  /..  ntz, 
10  L).  R.  257  (C.  P.  5,  1901  i. 

102.  Rule  to  show  cause  why  assessment  of  damages  Bar 

judgment  should  not   be  amended.48     Samuel  v. 


47  Sometimes  this  rule  is  directed  to  the  prothonotary  as  well 
as  to  the  plaintiff  but  this  does  not  seem  to  be  necessary,  as  the 
prothonotary's  position  will  be  supported  by  the  plaintiff.  Hut 
the  amount  of  the  assessment  as  it  stands,  and  as  it  is  claimed 
should  be,  are  properly  incorporated  in  the  rule.  'This  rule  does 
not  require  allocatur,  but  it  is  more  orderly  practice  to  ask  one, 
as  the  affidavit  in  support  of  the  petition  for  the  rule,  will  dis- 
play the  facts  of  the  petitioner's  case  in  a  far  more  satisfactory 
way  than  by  the  brief  "  reason  for  rule  "  can  supply. 

4S  These-  rules  are  more  frequently  employed  in  cases  of  judg- 
ments entered  by  warrant  of  attorney  attached  t :  incorporated 

in  a  bond  or  promissory  note  which  contain  a  clause  stipulating 
that  a  sum  measured  in  per  centum  of  the  real  debt  shall  be  in- 
corporated in  the  assessment  of  damages  when  judgment  is  en- 
tered by  virtue  of  the  warrant  of  attorney.  It  is  improper  to  80 
active  steps  are  taken  by  the  attorney  for  plaintiff. 

lie  must  do  more  than  merely  enter  judgment:  to  issue  a  fieri 
facias  is  sufficient  to  entitle  him  to  his  commission.  There  i-  a 
diversity  of  opinion  a-  to  how  the  "attorney's  commission"  i-< 

to  be  computed   whether  upon  the  principal  sum  of  the  debt   or 

upon   this   sum   plus   interest:   the   preponderance  of   pi 
favors  the  former,  hut   notwithstanding  the  authority  of  /■' 
.l.s.so.  x.  McKeown,  n;  W.  X.  C.  156  (C.  P.  '.  I  mally 

the  latter  method  is  adopted.    The  following  ten  a> 

indicatory,  the  attitude  of  the  courts  as  •  amount  of  (he 

u commission " \  Sloan  v.  Oarren,  !■'•  Phila.  63;  llennxg  \    Hied- 


CO  MOTIONS  AND  RULES  AT  COMMON  LAW. 

Scott,  7  W.  N.  C.  438  (C.  P.  2,  1879),  or  reduced. 
Reed  v.  Worthington,  9  W.  N.  C.  192  (C.  P.  4, 

1880). 

103.  Rule  to  show  cause  why  assessment  of  damages  by 

jury  of  inquest  should  not  be  set  aside.49  Mutter 
V.  Moore,  2  W.  N.  C.  429  (C.  P.  4,  1876)  ;  Bender 
v.  Gibbon,  4  W.  N.  C.  543  (C.  P.  4,  1877)  ;  Reilly 
y.  I.  C.  B.  Union,  12  W.  N.  C.  93  (C.  P.  1,  1882). 

104.  Rule  to  show  cause  why  an  award  should  not  be 

set  aside.    Navel  v.  Elliot,  5  W.  N.  C.  35  (Tioga, 

1878). 

VIII. 
Rules  relating  to  judgment. 

105.  Rule  on  plaintiff  to  show  cause  why  he  should  not 

produce  originals  of  instrument  sued  on,  for  in- 
spection.50   Richardson  v.  Snyder,  G  W.  N.  C.  414 

(S.  C.  1879). 


erwolf,  Ibid  65;  Reed  v.  Warthryton,  9  W.  K  C.  192  (C.  P.  4, 
1880).  Imler  v.  Imler,  Ibid  196  (S.  C.  1880).  Since  the  act 
of  July  9th,  1901,  P.  L.  614,  the  courts  have  been  more  liberal 
in  allowing  the  attorney's  commission  to  stand  as  provided  by  the 
instrument. 

49  This  rule  is  of  very  infrequent  occurrence  and  is  not  favored 
by  the  courts.  It  does  not  rest  at  all  on  the  same  principles  as 
a  motion  for  a  new  trial  for  insufficient  or  excessive  damages, 
but  rather  on  the  analogy  of  an  award,  which  is  not  to  be  set 
aside  except  for  fraud  or  misconduct  or  plain  mistake  of  law. 

50  To  enable  defendant  to  take  advantage  of  an  affidavit  of  de- 
fence if  a  variance :  it  is  not  a  rule  of  course  but  requires  allo- 
catur {Burton  v.  McCully,  9  W.  N.  C.  206  C.  P.  2,  1880). 
Indispensable  that  the  copy  should  be  accurate;  Guskey  v.  Spar- 
ter,  1  W.  N.  C.  470  (C.  P.  2,  1875). 


MOTIONS  AND  RULES  AT  I  OHMON  LAW.  g] 

106.  Rule  for  judgment  for  want  of  a  sufficient  affidavit 
of  defence.81 


107.  Rule  to  show  cause  why  judgment  should  aot  l"1 

entered  for  amount  admitted  in  affidavit  of  de- 
fence to  be  due  (under  Act  of  May  31,  L893,  P.  I.. 
L85).52  Calkins  v.  Keely,  :\  D.  R.  :,.:,.:»  (C.  1'.  -J. 
1894 ) . 

108.  Rule  to  show  cause  why  part  of  plaintiff's  cause  ■>: 

action  should  not  lie  withdrawn — e.  </..  an  item 
in  a  book  account — ami  judgment  entered  on  tin- 
portion  admitted.  Johnson  v.  Bazin,  4  \Y.  \.  c. 
171  (C.  P.  4,  1877). 

100.  Rule  to  show  cause  why  judgment  should  not  In- 
entered  on  a  conditional  verdict.  Williams  v. 
Eagin,  1  \Y.  N.  C.  340  (C.  P.  4,  1S75). 

110.  Rule  to  show  cause  why  judgment  should  not  In- 
entered  by  virtue  of  warrant  of  attorney  more 
than  twenty  years  old.     (Under  Rule  of  ( Jour!  23, 


51  This  rule  must  be  discharged  unless  proof  of  Bervice  of  ;i 
copy  of  the  statement  on  tin-  defendant  or  his  attorney  is  filed  of 
record  with  the  motion  for  the  rule  Bhowing  Bervice  wras  made 
full  fifteen  days  previous  to  motion,  and  the  record  shows  the 
statement  was  filed  within  that  time;  Phila.  Cloak  Co.  \. 
Williamson,^  D.  R.  10  (Schylk  L900).  On  this  rule  judgment 
cannot  be  entered  for  amounl  admitted  to  be  due;  Locher  \ 
Len&ing,  [bid  70-1  (  Lane  L900).  This  rule  must  be  taken  before 
anv  further  Bteps  are  taken  in  the  case;  O'Neil  v.  Hump.  22 
Pa.  395  (  L853). 

58  Judgment  may  be  entered  on  motion  filed  in  the  Prothono- 
tary,8  office  if  the  amount  admitted  to  be  due  is  clearly  apparent 
Roberts  v.  8harp,  161  I'a.  L85  (1894).  But  lee  Lewis  v.  Bo*- 
nert,  12  Pa.  C.  C.  366  (Lack.  L892). 


62  MOTIONS  AND  RULES  AT  COMMON  LAW. 

Sec.  5).    Henry  v.  Fawrest,  10  W.  N.  C.  571  (C. 

P.  2,  1881). 

111.  Rule  to  show  cause  why  judgment  should  not  be 

entered  on  the  whole  record.  City  to  Use  v.  Wis- 
tar,  6  W.  N.  C.  136  (C.  P.  4,  1878), 

112.  Rule  to  show  cause  why  nonsuit  should  not  be  en- 

tered.   Fouse  v.  Carrick,  5  W.  N.  C.  168  (C.  P.  1, 

1878). 

113.  Rule  to  show  cause  why  compulsory  nonsuit  should 

not  be  taken  off.  Watson  v.  Hue,  9  D.  R.  579 
(Warren,  1899)  ;  hinder  man  v.  Land  Co.,  15  W. 
N.  C.  192  (C.  P.  4,  1881);  Kitchen  v.  Ins.  Co.,. 
Ibid.  548  (C.  P.  1,  1885). 

114.  Rule  to  show  cause  why  non-pros  should  not  be 

struck  off.  Paris  v.  Hein,  6  W.  N.  C.  124  (C.  P. 
4,  1878);  Seidel  v.  Brceker,  Ibid.  135  (C.  P.  4, 
1878)  ;  Ellis  v.  Donaghy,  Ibid.  541  (C.  P.  3, 1879). 

115.  Rule  to  show  cause  why  judgment  entered  for  want 

of  an  affidavit  of  defence  should  not  be  struck  off. 
Miller  v.  Ins.  Co.,  1  Pearson,  106  (Dauph.  1857). 
Or  rule  to  show  cause  why  rule  for  judgment  for 
want  of  a  sufficient  affidavit  of  defence  (which  had 
been  discharged)  should  not  be  re-instated  and 
made  absolute.  Lcrinson  v.  Blumenthal,  14  D.  R. 
628  (Luzerne,  1905). 

116.  Rule  to  show  cause  why  judgment  should  not  be 

entered  de  bonis  testoris.  Harper  v.  Valentine, 
4  W.N.  C.  38  (C.  P.  4,  1877). 

117.  Rule  to  show  cause  why  judgment  should  not  be  en- 


MOTIONS  AND  RULES  AT  COMMON  LAW. 


- 


tered  against  garnishee  for  amount  admitted 
answer  to  be  due  defendant.    Ferguson  \.  C 
1  W.  X.  C.  L53  (D.  C  L874). 

118.  Rule  to  show  cause  why  judgment  should  not  be 

entered  against  garnishee  for  aot  making  more 
specific  answ .  i. 

119.  Rule  to  show  cause  why  an  appeal  from  a  magis- 

trate should  not  be  dismissed  for  want  of  juris- 
diction.54 Quigley  v.  Quigley,  in  \Y.  X.  c.  388 
(Chester,  1879). 

120.  Rule  to  show  cause  why  judgment  entered  for  want 

of  a  plea  <>n  same  day  plea  is  filed  should  aot  be 

struck  off. 

121.  Rule  to  show  cause  why  judgment  should  not   be 

entered  in  the  appearance  docket  nunc  pro  tunc. 
Phila.  v.  Gault,8  W.  X.  C.  14  (C.  P.  1.  L879). 

122.  Rule  to  show   cause   why   an   assigned   judgment 

against  the  petitioner,  should  not  be  Bet  off 
against  one  in  his  favor.55  Horton  v.  Mil!,,-.  ;i 
Pa.  256  (1803)  ;  Wimllrv.  [foore,  L0  W.  X.  C.  387 


"For  failure  to  answer  at   all  judgment   ma)   be  take] 
Philadelphia   by   motion    in   prothonotary's  office,  and   ah 
garnishee  fails  to  obey  a  pule  for  more  Bpecific  answer,  if,  how- 
ever, he  does  file  an  answer  following  such  a  rule  then  th  - 
must  be  taken  to  determine  the  sufficiencj  of  the  answers ;  / 
v.  BUnn,  2  W.  \.  C.  L72  (C.  P.  l.  1875). 

"The  better   practice   would   seem   t"   be   to  demur  to  the 
statement  filed  in  the  Common  Pleas,  by  which  the  questi 
jurisdiction  would  be  reached  as  readily  as  by  the  rule. 

\  judgment  cannot  be  set  off  against  one  which  hae 
opened;  Barles  v.  Wright,  88  Pa.  Super.  Ct.  160  (190 


£4  MOTIONS  AND  RULES  AT  COMMON  LAW. 

(Chester,  1880)  ;  Stout  v.  Moore,  7  W.  N.  O.  456 
(C.  P.  4,  1879). 

123.  Rule  to  show  cause  why  a  mistake  in  entering  judg- 

ment should  not  be  corrected,  as  to  name  of  de- 
fendant. Schwartz  v.  Maurcr,  2  W.  N.  C.  445 
(C.  P.  2,  1876). 

As  to  amount.  Gourley  v.  Hess,  8  W.  N.  C.  140 
C.  P.  3,  1879). 

— As  to  superfluous  matter.  Hartley  v.  White, 
94  Pa.  31  (1880). 

124.  Rule  to  show  cause  why  judgment  should  not  be 

struck  off.56  PunxsutawneyB.  &  L.  A.  V,  Gallo, 
9  D.  R.  761  (Jefferson,  1900)  ;  Wilkinson  v. 
Nichols,  10  W.  N.  C.  350  (C.  P.  3,  1887). 

125.  Rule  to  show  cause  why  judgment  on  a  transcript 

from  a  magistrate's  court  should  not  be  struck  off 
and  case  dismissed.57  Wilson  v.  Keely,  6  W.  N. 
C.  272  (C.  P.  4,  1878). 

126.  Rule  to  show  cause  why  judgment  should  not  be 


08  The  better  term  is  "  vacated  "  rather  than  "  struck  off," 
occasionally  the  rule  is  to  "set  aside"  the  judgment,  but  it  is 
doubted  whether  this  will  be  as  effective  to  raise  the  lien  of  the 
judgment  as  to  vacate.  This  rule  is  only  proper  where  an  irregu- 
larity on  the  face  of  the  record  is  apparent.  Rothenhausler  v. 
Bothenhausler,  6  W.  N.  C.  560  (C.  P.  2,  1879).  Laches  on  the 
part  of  defendant  is  fatal  to  the  rule  (Fry  v.  Morgan,  9  D.  R. 
210  (Schuylkill  1900)  ;  Blake  v.  P.  R.  R.  Co.,  12  D.  R.  661 
(Blair  1903). 

57  The  Court  of  Common  Pleas  has  no  power  to  vacate  or  an- 
nul a  judgment  in  a  transcript  from  the  docket  of  a  justice  of  the 
peace  or  magistrate  unless  the  record  displays  such  an  irregu- 
larity as  will  render  the  judgment  void.  Hicks  v.  Bldg.  Asso., 
12  D.  R.  143  (Berks  1902). 


MOTIONS  AN'H  RULES  AT  COMMON  LAW. 

opened  and  defendant  permitted  to  make  de- 
fence.68 Hippie  v.  Stoner,  11  1».  l;.  631  (Lan- 
caster, 1905  |. 

127.  Rule  to  show  cause  why  judgment  should  not   be 

modified,  iasr.  ,/.,  by  directing  that  do  execution 
issue  without  order  of  court  i.  Whipple  v.  Fire 
Association,  ."»  W.  N.  C.  259  I  < '.  P.  ::.  1876)  ;  or 
by  limiting  the  estate  recovered,  in  ejectment  to  a 
portion  instead  of  the  whole.  Gourley  v.  //■  \ 
W.  N.  C.  140  (C.  P.  3,  1879). 

128.  Rule  to  show  cause  why  judgment  against  several 

defendants  should  not   be  marked  to  the  use  <>f 


58  If  tlir  petitioner  is  a  stranger  to  the  record — terre-tenant  or 
person  affected  by  the  judgment — the  rule  should  be  "  and  pe- 
tioner  admitted  to  inervene  pro   inter  esse  suo  and   made  de- 

"•  Rittenhouse  v.  Fetters,  9  W.  X.  C.  22  L  (C.  P.  2,  I  - 
If  plaintiff  responds  to  petition  and  makes  answer  raising  a 
conflict  with  the  averments  of  petition,  the  court  must  determine 
the  facts  of  the  case  upon  depositions  Hotchkiss  v.  Lamphier, 
9  D.  B.  23  (Crawford  is!i!»).  See  as  to  evidence  required; 
Cooke  v.  Edwards,  9  I).  R.  L82  (C.  P.  L900).  As  to  judgment 
entered  by  warrant  of  attorney;  Miller  v.  Schenk,  94  P 
(1880).  The  rule  will  be  discharged  unless  the  averments  in 
the  petition,  if  denied  by  plaintiff,  are  unsupported  by  deposi- 
tions; Appelgate  v.  Cohn,  1  Pa.  Super.  Ct.  l^l  (1896).  When 
defendant  alleges  a  defense  to  a  claim  upon  which  judgment 
has  been  entered  for  failure  to  file  an  affidavit  of  defense  in  time, 

upon  a  rule  thereto  directed  and  served  the  court  will  pass  upon 

the  sufficiency  of  the  defense  in  determining  the  rule  Hunter  v. 
Forsyth,  205  Pa.   166  (1903). 

Act  of  June  '■<>,  1887  P.  L.  332,  conferred  no  power  on  married 
woman  to  confess  judgment  to  secure  debt  of  husband;  Real  Est. 
Ins.  Co.  v.  Eoop,  132  Pa.  196  (1890);  Pinkney  v.  Murray,  15 
W.  N.  C.  391  (S.  C  L880).  Bui  see,  as  to  a  D.  S.  B.  executed 
prior  to  this  act  upon  which  judgment  has  I n  entered  subse- 
quent to  act  dune  8,  1893  R.  I.  344;  Mutual  Life  Ins.  \ 
lleydrick,  22  Pa.  C.  C.  L59  (Crawf.  L899). 
5 


66  MOTIONS  AND  RULES  AT  COMMON  LAW. 

one  of  them.    Pearce  v.  Yost,  1  W.  N.  C.  472  (C. 

P.  2,  1875). 

129.  Rule  to  show  cause  why  the  marking  to  use  of  a 

judgment  should  not  be  vacated. 

130.  Rule  to  show  cause  why  plaintiff  should  not  issue 

execution  against  all  the  defendants  equally,  or 
upon  payment  by  one,  mark  the  judgment  to  his 
use.     Wilson  v.  Ritchie,  4  W.  N.  C.  37  (C.  P.  2, 

1877). 

131.  Rule  to  show  cause  why  the  prothonotary  should 

not  enter  satisfaction  of  the  judgment  of  record.59 

132.  Rule  to  show  cause  why  plaintiff  should  not  enter 

satisfaction,  under  act  March  14,  1876,  P.  L.  7. 
Eorton  v.  Hopf,  4  W.  N.  C.  381  (C.  P.  2,  1877)  ; 
Felt  v.  Cook,  9  W.  N.  C.  246  (S.  C.  1880)  ;  City  v. 
Oiccns,  12  W.  N.  C.  292  (C.  P.  3,  1882). 

133.  Rule  to  show  cause  why  verdict  in  interpleader 

should  not  be  erased  from  judgment  index.  Key- 
ser  v.  Ellis,  13  W.  N.  C.  313  (C.  P.  1,  1883). 

134.  Rule  to  show  cause  why  satisfaction  of  a  judgment 

should  not  be  revoked.  Mooney  v.  Carlin,  1  W. 
N.  C.  92  (D.  C.  1874)  ;  Crouthamel  v.  Silberman, 
Ibid.  131  (D.  C.  1874)  ;  Schnitzler  v.  Hammill, 
Ibid.  471  (C.  P.  2,  1875). 

135.  Rule  to  show  cause  why  an  award  of  arbitrators 


59  If  discharge  is  claimed  the  rule  should  be  to  open  the  judg- 
ment. 


MOTIONS  AND  RULES  AT  COMMON  LAW.  7 

should  ih»t  1m-  vacated  and  petitioner  lei  into  a 

defence.     Len  et  al.  v.  Nolan  et  <tl..  8  1».  EL  531 
(C.  P.  -.  Allgh.,  L899). 


IX. 
Rules  relating  to  costs. 

136.  Rnle  to  show  cause  why  security  should   doI    be 

entered  for  costs.,;"  Roest  v.  Barry,  1  W.  N.  C. 
20  il>.  C.  1874);  Sheridan  v.  Cassidy,  [bid.  L34 
(D.  C.  L874  i  ;  Rathbone  v.  Stetson,  I  W.  N.  C.  55 
(C.P.I,  1877)  :  ApplegaU  v.  R.  R.  Co.,  12  W.  N. 
C.  106  (C.  P.  I,  L882)  ;  Hubble  Whiti  Co.  v. 
Whiti  Co.,  9  I).  R.  568  (C.  P.  Blair,  L900)  and 
Bement  v.  Jackson,  Ibid.  T o « ;  (Cumberland, 
1900).  In  interpleader:  Smith  v.  Stoddart,  8  W, 
N.  C.  407  (C.  P.  2,  1880).  In  divorce:  l/<- 
Elhinney  v.  McElhinney,  13  W.  N.  C.  I'.U  (C.  P. 
2,  1883). 

137.  Rule  to  show  cause  why  defendant  should  not  enter 


60  By  rule  14,  sec.  1  (Rules  Courts  of  Common  P  Phila- 

delphia), security  for  costs  cannol  be  demanded  of  a  noi 
dent  plaintiff,  unless  the  defendant  has  a  defence  to  the  whole 
of  plaintiff's  claim. 

In  Mason  v.  Frick,  12  W.  X.  C.  570  (C.  P.  I.  1883),  it  is  held 
that  it  is  too  late  to  ask  for  the  rule  after  issue  joined;  1 
Kirk  v.  Kern,  13  W.  \.  C.  281   (C.  P.  2,  L883),  and  Uickok  v. 
ParkAsso'n.,  1  I  W.  N.  C.  12  (C.  P.  L,  1883). 

Where  defendanl  is  also  non-residenl  plaintiff  cannoi  1"'  re- 
quired to  give  security;  Broat  v.  Knight,  10  D.  R.  i  10  (Wayne 
1901  |  but  Bee  Uuir  v.  Leww,  L0  D.  R  I  19  (C  P.  I.  1901  I, 
and  Tijhr  v.  y,v,(/e,„,  30  W.  N.  C.  372  (C.  P.  :'.  L892). 


es  MOTIONS  AND  RULES  AT  COMMON  LAW. 

security    for    damages    and    costs.61      Young    v. 
Cooper,  6  W.  N.  C.  206  (C.  P.  2,  1878). 

138.  Rule  to  show  cause  why  garnishee  should  not  be 

allowed  costs  and  expenses.62    Milne  v.  Buckner, 
12  W.  N.  C.  532  (C.  P.  2,  1883). 

139.  Rule  to  show  cause  why  actions  should  not  be  con- 

solidated.   City  v.  Tyson,  9  W.  N.  C.  307  (C.  P. 

2,  1880). 

110.  Rule  to  show  cause  why  bill  of  costs  in  interpleader 
filed  without  allocatur  should  not  be  struck  off. 
Dorff  v.  Matthews,  38  Leg.  Int.  52  (C.  P.  2, 1881). 

141.  Rule  to  show  cause  why  fieri  facias  for  costs  in  in- 
terpleader should  not  be  set  aside.63  Hanbcst  v. 
Beckhaus,  13  W.  N.  C.  327  (C.  P.  2,  1883). 

112.  Rule  to  show  cause  why  execution  for  garnishees 
costs  should  not  issue.  Griffiths  v.  Stadtmueller, 
9  W.  N.  C.  318  (C.  P.  4,  1880). 

143.  Rule  to  show  cause  why  ca.  sa.  for  costs  should 


C1  Rule  14,  sec.  2  (Rules  Courts  of  Common  Pleas,  Philadel- 
phia), provides  that  bills  of  costs  must  be  verified  by  parties  or 
attorneys  M'Gervin  v.  Wanamaker,  10  D.  R.  725  (C.  P.  1, 
1901). 

62  Act  of  April  22,  1863,  provides  for  counsel  fee  for  gar- 
nishee ;  counsel  to  be  paid  out  of  balance  in  bis  hand  after  at- 
tachment and  costs  are  satisfied  in  Getze  v.  Smith,  1  D.  R.  123 
C.  P.  No.  1,  1891,  refused  to  tax  garnishee's  counsel  fee  as 
costs  because  garnishee  did  have  such  a  balance  in  band :  by  the 
act  of  April  29,  1891,  P.  L.  35,  this  fee  is  now  regularly  taxed. 

03  See  as  to  costs  in  interpleader;  Craig  v.  Bldg.  Asso.,  10 
W.  N.  C.  296  (C.  P.  Delaware  Co.  1881). 


MOTIONS  AND  RULES  AT  COMMON  LAW. 

not  be  sel  aside.     Ueaa   v.  Crump,  VI  \v.  x.  <\ 
534  (C.  P.  4,  L883). 

144.  Rule  to  show  cause  why  proceedings  should  not  be 

slaved  until  costs  of  previous  action  are  paid. 
Amsthal  v.  Fox,  13  \\\  X.  <\  223  (C.  P.  3,  L883). 

145.  Kiilc  to  show  cause  why  attachment  should  not  is- 

sue against  plaintiff  for  costs.  Lewis  v.  Eddy,  •'. 
W.  X.  C.  451  <(\  p.  :i,  1878). 

140.  Rule  to  show  cause  why  claimants  (in  inter- 
pleader) should  not  he  allowed  costs.  Mausley  v. 
Moore,  1  W.  X.  C.  268  (C.  P.  1,  1875);  Bank  v. 
Emerson,  7  W.  X.  C.  W2  (C.  P.  1,  L879)  ;  h<  wet  s 
v.  Evans,  I  hid.  573  (C.  P.  3,  L879). 

147.  Rule  to  show  cause  why  judgment   should  not   he 

entered  without  costs.  Kelly  v.  M'fg.  Co.,  <",  w. 
N.  C.  18G  (S.  C.  1878);  or  costs  disallowed: 
Samuel  v.  Scott,  7  \Y.  X.  C.  438  (C.  P.  2,  1879; 
Proctor  v.  Brill,  13  W.  X.  C.  252.  ( I'.  S.  C.  C. 
1883.) 

148.  Rule  to  show  cause  why  costs,  including  costs  of 

audit,  should  not  he  taxed,  and  execution  issue 
therefor  against  claimant,  who  ordered  the  fund 
into  court.  Dinsmore  v.  Paris,  7  \Y.  X.  C.  295 
(C.  P.  2,  1879);  Tatham  v.  Crawford,  2  W.  \. 
<\  3h7  (C.  P.  1,  1876). 

149.  Kulo  to  show  cause  why  affidavit  of  grounds  upon 

which  the  sheriff  was  ordered  to  pay  a  fund  into 
court,  should  not  he  exhibited.     Brown  v.    Vmos, 

L'  \Y.  X.  <".  !!!!>  (C.  iv  •:,  1875). 


70  MOTIONS  AND  RULES  AT  COMMON  LAW. 

150.  Rule  on  accountant — trustee,  et  ah — to  show  cause 
why  he  should  not  pay  auditor's  fee.  Re  Deineger 
Est.,  2  W.  N.  C.  446  (C.  P.  4,  1876). 


151.  Rule  to  show  cause  why  respondent  in  proceedings 

de  lunatico  inquirendo  should  not  pay  costs  there- 
of.64 

152.  Rule  to  show  cause  why  defendant  in  a  scire  facias 

sur  claim  for  benefits  assessed  should  not  have 
his  counsel  fee  taxed  as  costs.65 

153.  Rule  to  show  cause  why  plaintiff  should  not  pay 

costs  and  charges.  Perry  Township  Poor  Dist.  v. 
Red  Bank  T'w'p.  do.,  8  D.  R.  526  (Q.  S.  Jefferson, 
1899). 

154.  Rule  to  show  cause  why  judgment  should  not  be 

entered  for  no  more  costs  than  damages  covered 
by  verdict.66     Savage  v.   McHale,  8  D.   R.  560 

(Venango,  1899). 


c4  But  where  the  respondent  prevails  he  should  not  be  obliged 
to  pay  relator's  counsel  fee;  Com.,  ex  rel  O'Shea  v.  O'Shea,  10 
D.  K.  580  (C.  P.  2.  Allegh.  1901). 

65  Under  act  of  May  16,  1891  P.  L.  78,  this  rule  may  be  made 
absolute  as  of  course;  Allegheny  v.  Dietrich,  8  D.  P.  570  (C.  P. 
2,  Allegh.  1899). 

06  Costs  can  only  be  collected  by  the  execution  of  the  judg- 
ment an  alias  fi.  fa.  for  costs  will  be  quashed;  Bradley  v.  C.  & 
M.  R.  R.  Co.,  8  D.  R.  493  (Clearfield  1899). 


MOTIONS  AND  RULES  AT  COMMON  LAW.  3  | 

X. 

Rules  relating  to  execution. 

155.  Rule  to  show  cause  why  the  sheriff  should  not  have 
leave  to  proceed  with  an  execution   (stayed  by 
feigned  issue).67     Maker  v.  Conner,  2  \v    N    C 
335  (C.  P.  2,  1876). 

15G.  Rule  to  show  cause  why  terre-tenani  should  not  ho 
allowed  to  enter  security  for  stay  of  execution. 
Ellis  v.  Cadwallader,  14  \Y.  X.  C.  12  (C    1*    1 

1883). 

157.  Rule  to  show  cause  why  sheriff  should  net  he  re- 

strained  in  execution  to  certain  property. 

158.  Rule  to  show  cause  why  execution  should  nut  issue 

for  amount  remaining  due  on  a  judgment.     Gor- 
man v.  Mountjoy,6  \Y.  X.  C.  67  i  ( '.  P.  3,  L878). 

159.  Rule  to  show  cause  why  hooks  of  a  limited  partner- 

ship should  not  he  produced  and  execution  issue 
against  the  individual  members.    Bement  v.  Brick 


07  In  ordinary  cases  where  there  ha-  I n  a  defaull   by  the 

claimant,  or  intervening  party,  as  by  noi  filing  his  nan-,  etc., 
within  the  time  allowed,  tin'  practice  i-  to  make  a  motion  before 
tin-  court,  or  a  judge  in  chambers  for,  an  order  granting  leave  to 
the  sheriff  to  proceed;  Hallowell  v.  Schnitzer,  6  \\ .  V  < '.  169 
(C.  P.  •-'.  L879).  As  to  the  rigW  of  the  claimant  to  go  on  with 
the  issue  without  filing  his  bond  and  have  the  money  paid  into 
court,  see  Dillon  v.  Conover,  2  W.  V  C.  126  (C.  P.  I.  I 
Shaw  v.  Kenah,  [bid  i~:  (C.  P.  I.  L875),  and  Barnum  v. 
O'Brien,  )  W.  \.  r.  82  (C.  P.  I,  l-. 


72  MOTIONS  AND  RULES  AT  COMMON  LAW. 

Co.,  5  W.  N.  C.  58   (C.  P.  4,  1878)  ;  Whitall  v. 
Williams,  6  W.  N.  C.  44  (C.  P.  2,  1878). 

160.  Rule  on  sheriff  to  pay  proceeds  of  sale  of  realty 

into  court. 

161.  Rule  to  show  cause  why  sheriff  should  not  pay  the 

proceeds   of   a   sale   of   personalty   into    court.68 
Snow  Y.  Hymun,  2  W.  N.  C.  352  (C.  P.  2,  1876). 


68  The  proceeds  of  sales  of  personalty  are  not  ordinarily  payable 
into  court,  and  a  rule  with  regard  to  them  requires  to  be  allowed 
upon  special  ground  shown.  Applications  for  this  purpose,  how- 
ever, are  made  with  noticeably  increasing  frequency  at  the  pres- 
ent time,  and  require  careful  attention,  both  from  the  bar  and  the 
courts,  to  avoid  unsettling  the  practice  and  introducing  great  ad- 
ditional delay  and  inconvenience  in  realizing  the  proceeds  of  an 
execution.  There  are  cases  where  the  permission  is,  of  course,  as 
where  claimant  in  an  interpleader  has  been  unable  to  give  bond, 
and  the  sheriff  has,  therefore,  proceeded  to  sell  the  goods.  Dillon 
v.  Conover,  supra;  Barnum's  Co.  v.  O'Brien,  supra,  and  there  are 
others  where,  by  reason  of  liens  for  rent,  wages,  etc.,  the  fund  is 
assimilated  to  one  arising  from  the  sale  of  land,  and,  in  such 
sases,  it  is  the  practice  to  allow  the  payment  into  court.  Weis  v. 
Weis,  3  W.  N".  C.  76  (C.  P.  2,  1876)  ;  Kochenderfer  v.  Feigel,  5 
W.  N.  C.  404;  C.  P.  2,  1878;  Dunn  v.  Megarge,  6  W.  K  C.  204 
(C.  P.  2,  1878).  But  such  cases  are  exceptional.  As  a  rule,  the 
sheriff  must  take  the  responsibility.  The  law  he  is  bound  to 
know,  and  the  few  facts  that  affect  the  right  of  distribution,  such 
as  priority  of  the  writ,  etc.,  are  such  as  are  peculiarly  within  his 
knowledge.  Mere  difficulty,  or  even  danger,  is  not  ordinarily 
enough,  but  the  true  principle,  on  which  courts  do  interfere 
and  assume  the  distribution,  is  that  there  are  rights  involved 
by  reason  of  a  lien,  or  fraud  and  collusion,  etc.,  which  are 
entitled  to  the  protection  of  the  courts,  and  for  which  the  es- 
tablished action  against  the  sheriff  is  not  an  adequate  remedy. 
When,  therefore,  it  is  said  in  some  of  the  cases  that  if  it  is  unsafe 
for  the  sheriff  to  take  the  responsibility,  the  court  will  relieve 
him,  the  language  used  must  be  considered  in  connection  with 
the  case  in  hand.  Mathiews  v.  Webster,  7  W.  N.  C.  81  (C.  P.  4, 
1879)  and  Oeisel  v.  Jones,  Id.  82  (C.  P.  4, 1879),  were  both  cases 


MOTIONS  AND  RULES  AT  COMMON  LAW.  73 

162.  Rule  to  show  canst'  why  execution  should  not  be 

staved,  (e.  //..  where  an  application  has  been 
made  and  is  undetermined,  to  open  the  judgment, 
upon  which  it  issues  in  another  court  1.  Belding 
v.  Loire,  1  W.  X.  C.  313  (C.  P.  2,  1875). 

163.  Rule  to  show  cause  why  execution  should  not  he 

restrained,  (c.  g.,  until  plaintiff  has  indemnified 
defendant  against  an  outstanding  note).  Yerkes 
v.  Mooney,  1  W.  X.  C.  433  (C.  P.  4, 1875). 

164.  Rule  to  show  cause  why  execution  should  not  be 

set  aside.  Hanlcy  to  Use  v.  Fidelity  Trust  Co., 
8  D.  R.  207  (C.  P.  4,  1879) ;  or  to  dissolve  attach- 
ment execution:  Backer  v.  Saurman,  9  W.  X.  C. 
403  (C.  P.  1,  1880). 

165.  Rule  to  show  cause  why  sheriff's  sale  of  realty 

should  not  he  set  aside.69 

166.  Rule  to  show  cause  why  a  sheriff's  sale  of  person 

alty  should  not  be  set  aside.  Yocum  v.  Specht,  1 
W.N.  C.  6  (D.  C.  1874). 

167.  Rule  to  show  cause  why  exceptions  to  sheriffs  re- 


of  alleged  fraud  within  the  rule  as  I  have  stated  it,  and  in  Kirk 
v.  Ruckholdt,  7  \Y.  X.  C.  81  (C.  P.  4,  1879),  the  rule  was  dis- 
charged. The  subject  was  most  fully  and  carefully  considered  in 
Marble  Co.  v.  Burke,  5  \Y.  X.  C.  124  (C.  P.  2.  187*3  ),  and  the 
principles  there  laid  down  (followed  in  Dunn  v.  Megarg,e  o'  W. 
N  C.  204  (C.  P.  2,  1878),  are  those  which  oughl  to  govern  and 
settle  the  practice.  There  does  not  seem  to  be  any  case  which, 
properly  examined  on  the  facts,  is  at  all  in  conflict  with  theBe 
principles.  Baum  v.  Brower,  11  W.  X.  C.  802  ( I '.  P.  -'.  I 
00  For  a  discussion  of  this  rule  see  post  page  138. 


?4  MOTIONS  AND  RULES  AT  COMMON  LAW. 

turn  should  not  be  struck  off.     Craig  v.  Craig,  1 
W.  N.  C.  613  (C.  P.  4,1875). 

108.  Eule  (by  sheriff)  to  show  cause  why  he  should  not 
have  leave  to  pay  proceeds  of  a  sale  of  personalty 
into  court.70 


169.  Rule  to  show  cause  why  money  should  not  be  paid 

into  court  and  execution  stayed.  Fuller  v.  Blein, 
9  W.  N.  C.  574  (C.  P.  2,  1880). 

170.  Rule  to  show  cause  why  court  should  not  control 

the  order  and  manner  of  sale  of  real  estate.  Dill's 
Appeal,  13  W.  N.  C,  499  (S.  C.  1883). 

171.  Rule  to  show  cause  why  execution  should  not  be 

restricted,  in  conformity  to  contract  under  which 
judgment  was  obtained,  i.  c,  to  a  particular  fund. 
Mcknight  v.  Life  Asso.,  15  W.  N.  C.  400  (C.  P.  1, 

1885). 

172.  Rule  to  show  cause  why  sheriff  should  not  take 

purchaser's  receipt  and  make  special  return. 
Building  Asso.  v.  Steele,  10  W.  N.  C.  238  (C.  P.  2, 

1881).  " 

173.  Rule  to  show  cause  why  appraisement  should  not 

be  had  on  claim  of  exemption.  Vankirk  v.  Allen, 
1  W.  N.  C.  231  (C.  P.  1,  1875). 

174.  Rule  to  show  cause  why  appraisement  should  not 

be  amended. 


70  See  rule  1G1  and  note. 


MOTIONS  AND  RULES  AT  COMMON  LAW.  ;;, 

175.  Rule,  by  defendant,  to  show  cause  why  claim  of 
exemption  should  not  be  allowed.71 

170.  Rule,  by  plaintiff,  to  show  cause  why  claim  of  ex- 
emption should  not  be  disallowed.  McCauley  v. 
Rigg,  10  W.  N.  C.  425  (C.  P.  4,  1885). 

178.  Rule  to  show  cause  why  appraisement  should  not 

be  set  aside.72     Convth  to  Use  v.  Brown,  9  D.  R. 
731   (Indiana,  1900). 

179.  Rule  to  show  cause  why  the  indorsement  "  exemp- 


71  The  claim  of  exemption  may  be  made  and  established  by 
defendant's  daughter  Bank  v.  Griffith,  8  D.  P.  333  (Chester 
1898). 

72  It  seems  that  the  right  to  exemption  may  not  be  denied 
without  a  jury  trial;  Tasker  v.  Sheldon,  19  W.  K  C.  31  (S.  C. 
1887). 

It  is  not  usual  to  interfere  with  the  sheriff  in  allowing  or  re- 
fusing the  claim  of  exemption  or  the  conduct  of  the  appraise- 
ment; his  liability  to  an  action  being  in  ordinary  cases  a  suffi- 
cient protection  to  parties  concerned.  Pile  v.  Grambo,  1  W.  X. 
C.  7  D.  C.  1871;  Kiker  v.  Walker,  7  W.  N.  C.  521  (C.  P.  2, 
1879)  ;  Norris  v.  Town,  1  W.  N.  C.  62  (D.  C.  1874)  ;  Chestnut 
v.  Meace,  3  W.  X.  C.  210  (C.  P.  4,  1876)  ;  Thornton  v.  Aubrey 
Hotel  Co.,  5  W.  X.  C.  428  (C.  P.  3,  1878)  ;  Bowman  v.  Tagg, 
6  W.  X.  C.  220  (C.  P.  2,  1878).  But  in  exceptional  cases, 
where  it  'plainly  appears  that  the  appraisement  lias  been  im- 
properly or  fraudulently  conducted,  the  courts  have  interfered. 
Posey  v.  Loutey,  5  W.'X.  ('.  291  (<'.  1'.  :'..  L878)«;  Norris  v. 
Town,  1  W.  X.  C.  51  (D.  C.  1871 )  ;  Staples  v.  Wells,  2  W.  V  C. 
139  (C.  P.  1,  1875)  ;Cornman's  Appeal,  7  W.  N.  C.  513  (S.  C. 
L879);  Martin  v.  Megarry,  8  W.  X.  C.  L45  (C.  P.  I.  L880)  ; 
Buhl  v.  Crawford.  L3  W.  X.  Q.  L3  (C.  P.  3,  L883)  ;  Allemong  v. 
Passmore,  1  1  W.  X.  C.  121  (C.  P.  1,  L883)  ;  Wilkins  v.  Rubin- 
cam,  15  W.  N.  C.  128  (C.  P.  4,  188  1).  Where  relatives  of  de- 
fendant were  appraisers.  Bank  v.  Keen,  1  1>.  R.  !*'>  (Lan,c. 
1892).  As  to  exemption  where  questions  of  law  are  involved; 
Smith  v.  Carter,  12  L.  I.  LOO  (C.  P.  I,  L885) ;  McCauley  v. 
Rigg,  16  W.  N.  C.  125  (C.  P.  1,  1885). 


76  MOTIONS  AND  RULES  AT  COMMON  LAW. 

tion  and  stay  waived  "  should  not  be  struck  off 
writ  of  fieri  facias.  Brown  v.  Dougherty,  4  W.  N. 
C.  36  (C.  P.  1,  1877)  ;  (explained  in  Allison  v. 
Bradley,  Ibid.  150,  same  court)  ;  Building  Asso. 
v.  Schott,  6  W.  N.  0.  399  (C.  P.  2,  1878). 

180.  Rule  to  show  cause  why  inquisition  and  condemna- 

nation  of  land  taken  in  execution  should  not  be 
set  aside.  Huddy  v.  Jones,  5  W.  N.  C.  491  (C.  P. 
1,  1878)  ;  Donahue  v.  Helme,  Ibid.  539  (C.  P.  4, 

1878). 

181.  Rule  to  show   cause  why  levy  and  condemnation 

should  not  be  set  aside  as  to  portion  of  the  land 
taken  in  execution.  Garsedv.  Hutchinson,  2  W. 
N.  C.  305  (C.  P.  2,  1876). 

182.  Rule  to  show  cause  why  an  attachment  of  the  per- 

son should  not  issue.73 


73  It  is  to  be  noted  that,  being  the  nature  of  a  criminal  pro- 
ceeding involving  imprisonment  for  non-compliance  with  the 
order  of  court,  notice  of  this  rule  must  be  served  personally  on 
the  party  to  be  attacked ;  service  on  counsel  or  on  a  deputy 
(when  directed  against  an  officer)  not  being  sufficient  (Rex  v. 
Smithers,  3  T.  E.  351)  ;  Patterson  C.  Patterson,  1  W.  N.  C.  374 
(C.  P.  2,  1874)*  But  the  attachment  does  not  operate  other- 
wise than  to  compel  the  person  attached  to  appear  and  show 
cause  why  he  should  not  be  deprived  of  his  liberty.  Notice  of 
the  rule  cannot  be  given  in  a  foreign  jurisdiction,  Russel  v. 
Russel,  11  W.  N.  C.  156,  (C.  P.  2,  1881)  but  may  within  the 
state;  Bullock  v.  McBonough,  2  Pears.  195  (Dauph,  1874). 
The  rule  must  explicitly  state  where  the  party  attached  is  to 
appear  so  he  may  have  opportunity  to  purge  himself  of  con- 
tempt ;  Com'th  v.  *Dow,  6  Luz.  L.  E.  219  (1877).  A  voluntary 
appearance  of  party  attached,  after  the  rule  nisi  has  been 
entered,  does  not  relieve  him  from  the  result  (Respublica  v. 
Newell,  3  Yeates  107).  The  rule  will  be  discharged  when  issued 
against  a  party  called  by  opponent  to  testify  as  in  cross-exami- 


MOTIONS  AND  RULES  AT  COMMON  LAW.  77 

(a)  For  not  complying  with  an  order  of  court 

under  the  building  law.    Bowers  v.  Creigh- 
ton,  1W.  N.  C.  13  (D.  C.  1874). 

(b)  Or  with  an  order  to  pay  alimony.    Patterson 

v.  Patterson,  Ibid.  371  (C.  P.  2,  1871). 

(c)  Or,  on  the  sheriff,  for  disregarding  an  order 

of  court.  Fclton  v.  Uhlinger,  Ibid.  37  (D. 
C.  1871). 

(d)  Or  on  a  surety  for  contempt  in  giving  bond 

under  false  name.  Com.  v.  Davis,  Ibid.  18 
(D.  C.  1874). 

(e)  Or  to  compel  a  witness  to  answer  on  taking 

of  depositions.  Addicks  v.  Carrigan,  Ibid. 
358  (C.  P.  2,  1875)  ;  Struthers  v.  The  Bul- 
letin, 2  W.  N.  C,  201  (C.  P.  2,  1870). 

(f)  Or  on  a  subpoenaed  witness  for  disregarding 

subpoena. 


nation,  unless  a  subpoena  to  that  end  has  been  served  upon  him 
and  his  costs  tendered  (Trimble  et  al  v.  Mulholler,  8  1).  R.  I  1 1 
(Blair  1899),  and  it  is  premature  if  for  payment  of  an  amount 
claimed,  until  by  adjudication  it  is  definitely  fixed  (Shaffer  v. 
Davis,  1  W.  N\  C.  374  C.  P.  2,  1874). 


78  MOTIONS  AND  RULES  AT  COMMON  LAW. 

XL 

Rules  relating  to  mechanics  and  municipal  claims. 

183.  Rule  to  show  cause  why  a  mechanics'  lien  (or  muni- 
cipal claim)  should  not  be  struck  off.74  Wolfe  v. 
Kelly,  9  D.  R.  515  (SchuyL,  1900);  Christ  v. 
Schuylkill  E.  R.  R.,  Ibid.  268  (Schuyl.,  1900); 
Br  no  re  v.  Leonard ,  Ibid.  211  (Lack.  1900)  ;  Con- 
nell  v.  Kerr,  Ibid.  145  (C.  P.  1,  1900)  ;  Allegheny 
v.  Dietrich,  8  D.  R.  570  (C.  P.  2,  Allegh.,  1899)  ; 
Harrisburg  v.  Augenbaugh,  8  D.  R.  491  (Dauph. 
1899).    Este  v.  P.  R.  R.  Co.,  13  D.  R.  451  (C.  P. 


74  This  rule  is  only  proper  where  the  record  shows  an  error 
on  its  face,  and  can  he  had  at  any  stage  of  the  proceedings :  as 
for  example,  that  the  claim  was  filed  too  late,  that  notices  (when 
required  by  the  law  under  which  claim  was  filed),  were  im- 
properly given,  that  the  scire  facias  sur  claim  was  too  late  in 
exit,  or  illegally  made  known,  that  the  lien  is  improper  in  form, 
etc.,  hut  where  the  objection  is  to  matters  that  do  not  appear  of 
record,  such  as  wrong  parties  made  defendant,  an  affidavit  of  de- 
fence must  he  filed.  As  such  objections  are  matters  of  fact 
which  must  he  proved  if  they  are  disputed,  or  which  the  plaintiff 
must  have  opportunity  to  attack  their  sufficiency  in  a  rule  for 
judgment.  If  plaintiff  succeeds  in  getting  judgment  by  default, 
then  defendant's  rule,  in  the  latter  alternative  must  be  to  open 
judgment  and  be  let  into  a  defence,  or  if  it  is  obtained  by  a  terre- 
tenant,  or  one  not  party  to  the  record  to  open  the  judgment  and 
intervene  fro  interesse  sua  to  make  defence.  In  the  former  class 
of  objections  a  reason  for,  should  be  filed  with  the  rule  and  in 
the  latter,  a  copy  of  the  affidavit  and  rule  as  allowed  served  on 
plaintiff.  In  all  cases  a  stay  of  proceedings  should  be  asked.  As 
to  formal  objections  it  must  be  remembered  that  amendments 
are  permitted  by  statute  (acts  of  1901),  at  any  time  and  it  is  of 
little  use  to  raise  objections  to  any  informalities  of  the  lien  at 
any  time.  It  may  be  truthfully  said  that  it  is  difficult  for  the 
plaintiff  to  blunder  sufficiently  to  invalidate  his  cliam. 


MOTIONS  AND  RULES  AT  COMMON  LAW.  ;., 

3,  1904)  ;  Walter  v.  Powell,  Ibid  667  i  Butler 
1904). 

184.  Rule  to  show  cause  why  owner  of  property  should 

not  pay  into  court  amount  due  on  claim.75  I\'<  n- 
derdine  v.  Eueman,  1  W.  N.  C.  105  (I).  C.  1874  i. 

185.  Eule  to  show  cause  why  a  municipal  claim  should 

not  be  apportioned :  City  to  Use  v.  Penrose,  6  \Y. 
N.  C.  132  (C.  P.  2,  1878). 

186.  Eule  to  show  cause  why  judgment  should  not  be 

entered  for  that  part  of  a  claim,  to  which  affidavit 
of  defence  is  insufficient.  Swenk  v.  Irwin,  10  D. 
R.  732  (Delaware,  1901). 

186.  Rule  to  show  cause  why  mechanics'  claim  should 

not  be  amended.  Freundv.  Fenner,  8  AY.  N.  C. 
287  (C.  P.  4,  1880)  ;  Sparr  v.  Walz,  9  \Y.  N.  C.  64 
(C.  P.  2,  1880)  ;  Young  v.  Harper,  12  W.  N.  C. 
304  (C.  P.  2,  1882). 

187.  Rule  to  show  cause  why  municipal   claim   should 

not  be  amended.    City  v.  Wagner,  9  W.  N.  C.  511 

(C.  P.  4,  1881). 

188.  Rule  to  show  cause  why  non-pros  for  want  of  a 

narr  on  scire  facias  sur  municipal  claim  should 
not  be  struck  off.  City  v.  Scott,  8  \Y.  X.  C.  405 
(C.  P.  1,1880). 

189.  Rule  to  show  cause  why  municipal  claims  should 


75  Under  sec.  15,  act  June  4,  1901,  P.  L.  364,  this  rule  does  noi 
seem  to  be  necessary. 


80  MOTIONS  AND  RULES  AT  COMMON  LAW. 

not  be  consolidated.  City  v.  Tyson,  9  W.  N.  C. 
367  (C.  P.  2,  1880). 

190.  Rule  to  show  cause  why  bond  of  contractor  should 

not  be  filed  to  release  property  from  mechanics' 
lien.    Matsinger  v.  Mullen,  3  W.  N.  C.  544  (C.  P. 

2,1877). 

191.  Rule  to  show  cause  why  an  item  in  a  mechanic's 

claim  should  not  be  struck  out.  Shields  v.  Gar- 
rett, 4  W.  N.  C.  140  (C.  P.  4,  1877)  ;  Gray  v.  Dick, 
8  W.N.  G.  435  (C.  P.  2,  1880). 

192.  Rule  to  show  cause  why  judgment  entered  on  a 

scire  facias  sur  municipal  claim  should  not  be 
vacated.  City  to  Use  v.  Mens,  9  D.  R.  309  (C.  P. 
4,  1900). 

193.  Rule  to  show  cause  why  judgment  on  a  municipal 

claim  should  not  be  opened,  and  terre-tenant  ad- 
mitted to  intervene  pro  inter  esse  suo  and  defend 
City  v.  Nell,  25  Pa.  Super.  Ct.  347  (1904). 

194.  Rule  to  show  cause  why  scire  facias  sur  municipal 

claim  should  not  be  quashed.76  City  v.  Riester, 
142  Pa.  39  (1891). 

195.  Rule  to  show  cause  why  judgment  by  default  in  a 

mechanic's  lien  should  not  be  struck  off.77    Ruh- 


76  This  rule  is  effective  either  hefore  or  after  judgment,  but  if 
it  is  taken  after  judgment  on  the  clause  is  entered,  the  rule 
should  provide  that  the  judgment  he  vacated  or  "  struck  off  " 
as  it  is  in  the  usual  term. 

77  These  objections  would  maintain  in  the  case  of  municipal 
claims. 


MOTIONS  AND  RULES  AT  COMMON  LAW.  gi 

land  to  Use  v.  Alexander,  41  W.  \.  C.  16  (C.  P.  4, 
1897)  :  Johnson  v.  Schofield,  8  D.  R.  410  (Clearf 

1898). 

19G.  Rule  to  show  cause  why  judgmenl  should  not  Ik- 
entered  for  that  portion  of  the  claim  for  which  the 
affidavit  of  defence  is  insufficient.  Swenk  v. 
Irwin,  10  D.  R.  732  i  Delaware,  1901). 

197.  Rule  to  show  cause  why  date  of  claim  should  not 

be  corrected. 

198.  Rule  to  show  cause  why  claim  should  not   be  re- 

stricted to  less  land  than  against  which  it  is  filed.78 

199.  Rule  to  show  cause  why  plaintiff  in  a  mechanic's 

claim  should  not  file  affidavit  of  amount  actually 
due.    Act  of  June  4,  1901,  sec.  75,  P.  L.  431. 

200.  Rule  to  show  cause  why  scire  facias  sur  municipal 

claim  should  not  issue.    Act  June  4,  1901,  sec.  15 
P.  L.  364.    Or  under  this  same  section. 

201.  Why  defendant  in  municipal   claim  should  enter 

security  in  lieu  of  the  claim.    Act  of  June  4,  1901, 
sec.  15,  P.  L.  307. 

XII. 

Rules  in  divorce. 

202.  Rules  to  answer  libel,  etc.,  in  accordance  with  the 

rules  of  court. 

203.  Rule  to  show  cause  why  alimony  and  counsel  fee 

should  not  he  allowed.     Reeves  v.  Beeves,  1  W. 
N.  C.  123  (C.  P.  Phila.  1874). 

204.  Rule    to    show    cause    why    libel    should     not    be 

amended.    Matthvir.s  v.  Matthews,  (I  W.  X.  0.  117 
(C.  P.  4,  1878). 


n  TTnder  sec.  23,  act  June  4,  1001,  P.  L.  431. 
0 


82  MOTIONS  AND  RULES  AT  COMMON  LAW. 

205.  Rule  to  show  cause  why  the  case  should  uot  be  with- 

drawn   from    the    master    and    issue    awarded. 
Fougeray  v.  Fougeray,  5  W.  N.  C.  38  (C.  P.  2, 

1878). 

206.  Rule  to  show  cause  why  decree  in  divorce  should 

not  be  vacated.    Peterson  v.  Peterson,  6  W.  N.  C. 

449  (C.  P.  3,  1878). 

207.  Rule  to  show   cause   why  answer  should   not  be 

struck  off  and  issue  refused.    Jordan  v.  Jordan, 
13  W.  N.  C,  193  (C.  P.  2,  1883). 

208.  Rule  for  particulars.79 

209.  Rule  to  show  cause  why  list  of  witnesses  should  not 

be  furnished  where  issue  has  been  framed.     Mul- 
leson  v.  Mulleson,  13  W.  N.  C.  314  (C.  P.  3,  1882). 

210.  Rule  to  show  cause  why  libellant  should  not  have 

leave  to  discontinue.80 


79  Under  act  of  May  25,  1878,  P.  L.  156,  this  is  a  rule  of 
course  and  absolute  in  first  instance. 

80  In  strict  law  a  discontinuance  is  always  "by  leave  of  the  court, 
and  in  cases  where  it  will  work  hardship  or  injustice  to  another 
party,  it  is  not  allowed.  Kennedy  v.  McN icicle,  7  Phila.  217  (D. 
C.  2,  1869).  In  ordinary  cases,  however,  it  is  the  uniform  prac- 
tice to  assume  the  leave  of  the  court,  without  any  application  in 
fact  for  it,  subject  to  be  rescinded  or  struck  off  if  the  circum- 
stances are  such  that  the  court  would  not  have  granted  it  in  the 
first  instance.  See  Davis  v.  Sharpe,  5  W.  N.  C.  404  (C.  P.  2, 
1878)  ;  Schuylkill  Bank  v.  Macalester,  6  W.  &  S.  149;  Cooper  v. 
Cooper,  1  Phila.  129  (D.  C.  Allghey.  1849).  In  divorce  cases, 
however,  the  practice  is  always  to  take  a  rule  in  the  form  above 
given.  Payne  v.  Grant,  7  W.  N.  C.  406  (C.  P.  1,  1879); 
Latouche  v.  Rowland,  12  W.  N.  C.  384  (C.  P.  2,  1882).  Where 
something  more  than  mere  discontinuance  is  desired,  as  that  it 
be  nunc  pro  tunc,  it  is  the  practice  to  take  a  rule;  Tisdall  v. 
Paul,  8  W.  N.  C.  357  (C.  P.  2,  1880). 


MOTIONS  AND  RULES  AT  COMMON  LAW.  g3 

XIII. 

Miscellaneous  rules. 

211.  Rule  to  show  cause  why  amendment  (of  record  or 

any   part   of   it)    should   not  be  allowed.      (See 
Rules  11,  20,  62,  68,  98,  197,  and  215). 

212.  Rule  to  show  cause  why  order  on  sheriff  to  proceed 

in  an  interpleader  should  not  be  vacated.     Jag- 
gers  v.  Bruner,  1  W.  N.  C.  28  (D.  C.  1871). 


-Or  order  to  produce  papers   improvidently 
granted.     Sollers  v.  Dunbar,  1  W.   N.  C. 

313  (C,  P.  2,  1875). 


Or    order    admitting    attorney    to    practice. 

In  re  O' Grady,  4  W.  N.  C.  199  (C.  P.  1, 

1877). 

Or  appointment  of  commissioner.     Hortsman 

v.    Kaufman,   7   W.   N.    C.   487    (C.   P.   3, 
1879). 

Or  order  to  pay  money  in  to  Court.     Garver 

v.  Ward,  9  W.  N.  C.  192  (C.  P.  4,  1880). 

Or  for  examination  of  defendant   under  Act 

of  1879.     Loewi  v.  Haedrick,  8  W.  N.  C. 
70  (C.  P.  1,  1879). 

213.  Rule  to  show  cause  why  order  of  Court,  allowing 
sheriff  to  sell  goods  taken  in  foreign  attachment, 
or  perishable,  should  not  be  modified.  Green  v. 
Kenney,  6  W.  N.  C.  574  (C.  P.  2,  1879). 


84  MOTIONS  AND  RULES  AT  COMMON  LAW. 

214.  Rule  to  show  cause  why  entry  of  judgment  on  the 

index  should  not  be  erased  or  struck  off.     City  V. 
Scott,  8  W.  N.  C.  405  (C.  P.  1,  1880). 

215.  Rule  to  show  cause  why  feigned  issue  in  sheriff's 

interpleader  should  not  be  amended.     Horton  V. 
McCurdy,  37  Leg.  Int.  377  (C.  P.  4,  1880). 

216.  Rule  to  show  cause  why  prothonotary  should  not 

note  on  docket  certain  data.    Myer  v.  Verner,  10 
W.  N.  C.  138  (C.  P.  4,  1881). 

217.  Rule  to   show   cause   why  chosing  of  arbitrators 

should  not  be  set  aside.     Sicope  v.  McConsey  et 
ah,  8  D.  R.  373  (Lane.  1899). 

218.  Rule  to  show  cause  why  decree  by  divided  Court 

opening  a  judgment  should  not  be  vacated.     Hoyt 
v.  Wilmer,  13  W.  N.  C.  130  (C.  P.  3,  1883). 

219.  Rule  to  show  cause  why  a  party  may  not  act  in  any 

respect  nunc  pro  tunc: 


-To  move  for  a  new  trial:  Hclmbold  v.  Caw- 
ley,  1  W.  N.  C.  41  (D.  C.  1874). 


-To  file  an  appeal:  Kelly  v.  Gilmore,  1  W.  N. 
C.  73  (D.  C.  1874).  Schveman  v.  Stern- 
berger,  7  W.  N.  C.  Ill  (C.  P.  3, 1879). 

-To  amend  assessment  of  damages.  Samuel 
v.  Scott,  7  W.  N.  C.  438  (C.  P.  2,  1879). 

-To  discontinue  the  action.  Tisdall  v.  Paul, 
8  W.  N.  C.  357  (C.  P.  2,  1880). 


MOTIONS  AND  RULES  AT  COMMON  LAW.  35 

To  file  answer  to  libel  in  divorce.     8chrn  id(  r 

v.  Schneider,  9  \Y.   N.   C.  253    (C.    P.  3, 

18S0). 

To  file  statement  in  interpleader.     Kiker  v. 

Weightman,  9  W.  N.  C.  274  (C.  P.  3,  L880). 

To  file  depositions.     Asso.  v.   Goldbeck,  12 

W.  N.  C.  533  (C,  P.  2,  1883). 

To  file  affidavit  of  defence.    Brattle  v.  Deich- 

ler,  15  W.  N.  C.  221  (C.  P.  1,  1884). 

To  file  affidavit  under  the  Act  of  July  9,  1901, 

P.  L.  fill.     King  v.  Grannis,  12  D.  R.  3  0 
(Warren,  1903). 

220.  Rule  to  show  cause  why  proceedings  should  not  be 
stayed.  Longstreth  v.  Thornton,  9  W.  N.  C.  206 
(C.  P.  2,  1880). 

Until  costs  in  former  action  are  paid  :  frmitli 


v.  Urian,  11  W.  N.  C.  284  (C.  P.  3,  1882). 

221.  Rule  to  show  cause  why  agreement  of  parties  should 

not  be  struck  from  record.     Miller  v.  Gallagher, 

1  W.  N.  C.  374  (C.  P.  3, 1875)  ;  Hagarty  v.  Morris, 

2  W.  N.  0.  154  (C.  P.  2,  1875). 

222.  Rule  to  show  cause  why  proceedings  should  not  1m? 

transferred  from  another  Court  and  approved 
nunc  pro  tunc.60  In  re  Baker's  Estate,  2  W.  N.  0. 
198  (C.  P.  2,  1875). 


""Since  the  adoption   of  the   method   of  assigning  cases   in 
Philadelphia  County  by  Lot  to  one  of  the  five  Courts  of  Common 


86  MOTIONS  AND  RULES  AT  COMMON  LAW. 

223.  Rule  to  show  cause  why  record  and  proceedings 

should  not  be  removed  to  the  United  States 
Courts.  Belt  v.  Montgomery,  1  W.  N.  C.  265  (C. 
P.  2,  1875)  ;  Loffler  v.  Ins.  Co.,  Ibid.  346  (C.  P.  4, 
1875)  ;  Ruddy  v.  Havens,  3  W.  X.  C.  342  (C.  P.  2, 
1877). 

224.  Rule    to    show    cause    why    petition    for    removal 

should  not  be  set  aside.81 

225.  Rule  to  show  cause  why  an  exoneretur  should  not 

be  entered.     Com.  ex  rel  v.  Moloney,  3  W.  N.  C. 

407  (C.  P.  1,  1877). 

226.  Rule  to  show  cause  why  order  of  sale  in  partition 

should  not  be  set  aside.  Young  v.  Mclntyre,  6 
W.  N.  C.  252  (C.  P.  1,  1878). 

227.  Rule  to   show   cause   why   a   release  of  mortgage 

should  not  be  vacated.  In  re  Meloy  Mortgage,  8 
D.  R.  364  (Cumberland,  1899). 


Pleas  of  Philadelphia  County,  this  is  a  rule  of  course,  but  not 
absolute  in  the  first  instance,  cause  must  be  shown,  and  the  cus- 
tom prevails  to  take  the  rule  in  the  court  to  which  the  later  case 
is  assigned.  It  will  be  made  absolute  where  the  question  raised 
by  the  later  case  is  pending  in  another  phase,  in  another  court, 
or  where  the  parties  are  the  same,  or  where  proceedings  in 
Equity  are  the  outcome  of  an  action  at  law  determined  in  an- 
other court.  The  reason  for  the  practice  is  too  obvious  for  ex- 
planation. 

81  It  would  seem  that  the  object  of  this  rule  would  be  as  well 
attained  in  the  disposition  of  such  a  rule  as  222 :  and  it  is  doubt- 
ful that  this  rule  would  be  made  absolute  unless  it  were  allowed 
by  the  court  upon  peculiar  facts  which  would  establish  extra- 
ordinary jeopardy  to  the  party  upon  the  final  adverse  disposition 
of  rule  222. 


MOTIONS  AND  RULES  AT  COMMON  LAW.  87 

228.  Rule  to  show  cause  why  one  should  not  be  subro- 

gated  to  the  rights  of  another.  Fox  v.  Litwiler, 
12  L).  R.  337  (Columbia,  1902). 

229.  Rule  to  show  cause  why  a  next  friend  should  not  be 

removed  and  another  substituted.  Ruffel  v.  Po- 
ller B.  A.,  9  D.  R.  182  (C.  IV  4,  1900). 

230.  Rule  to  show  cause  why  Plaintiff  should  not  have 

leave  to  appear  in  person  before  a  Commissioner, 
and  orally  to  examine  all  witnesses  as  may  be 
examined,  in  a  foreign  jurisdiction  under  commis- 
sion issued  in  behalf  of  defendant.  Parsons,  Ad- 
ministrator v.  Middleton,  9  D.  R.  53  (C.  P.  4, 
1900). 

231.  Rule  to  show  cause  why  one  judgment  should  not 

be  set  off  against  another,  and  the  difference  be- 
tween them  accepted  in  satisfaction.  Wiggins  v. 
Dunkelbcrgcr,  9  D.  R.  91  (Schuylkill,  1900). 

232.  Rule  to  show  cause  why  judgment  should  not  be 

vacated  and  writ  of  scire  facias  quashed :  Sey- 
mour et  al  v.  Fulton,  9  D.  R.  (ill  (York,  1900). 

233.  Rule  to  show  cause  why  an  order  to  open  a  judg- 

ment should  not  be  vacated.  Eoyt  v.  Wilmer,  13 
\Y.  N.  C.  130  (C.  P.  3,  1883). 

234.  Rule  to  show  cause  why  claim  of  exemption  should 

not  be  set  aside.  Hayes  v.  Lents,  8  D.  R.  <*>2S 
(Montgomery,  1899). 

235.  Rule  to  show  cause  why  substituted  security  should 

not  be  struck  off  and  lien  reinstated.  Sillier  V. 
Ross,  12  Pa.  Super.  Ct.  206  i  L900). 


88  MOTIONS  AND  RULES  AT  COMMON  LAW. 

23G.  Kule  to  show  cause  why  an  application  for  a  charter 
should  not  be  withdrawn.  In  re  Philadelphia  As- 
sociation, 7  W.  X.  C.  140  (C.  P.  2,  1879). 


XIV. 

Rules  provided  for  by  statute. 

237.  Rule  to  produce  books,   papers  or  documents  at 

trial.     Act  of  Feb.  27,  1798,  3  Sm.  L.  303. 

238.  Rule  to  show  cause  why  purchase  of  land  at  a  tax 

sale  should  not  reconvey  to  the  owner.  Act  of 
May  18,  1856. 

239.  Rule    for   interpleader.     Act   of   March    11,    183G, 

(sec.  4),  P.  L.  7.  Vandegrift  v.  Freeman,  1  W. 
N.  C.  109  (D.  C.  1874).  Or  under  act  of  May  20, 
1895,  P.  L.  95.  ( See  Meyer  v.  Jeske,  8  D.  R.  229 
(Pike  1898). 

240.  Rule  for  Bill  of  Particulars  in   Divorce.     Act  of 

May  25,  1878,  P.  L.  156. 

241.  Rule  to  show  cause  why  Court  should  not  order 

satisfaction  of  jududgment.  Act  March  14,  1876, 
P.  L.  7.82  Shayler  v.  Parsons,  1  Pa.  Super.  Ct. 
281  (1892)  ;  Melan  V.  Smith,  134  Pa.  649  (1890). 

242.  Rule  to  show  cause  why  ejectment  should  not  be 

brought.  Act  of  June  25,  1885,  P.  L.  152.  Great 
N.  P.  Co.  v.  Yates,  8  D.  R,  523  (Warren,  1899). 


82  It  is  doubtful  whether  this  rule  is  proper  in  the  case  of  an 
assigned  judgment. 


MOTIONS  AND  RULES  AT  COMMON  LAW.  gg 

243.  Rule  to  show  cause  why  judgment  should  not  be 

rendered  for  amount  admitted  to  be  due.     Act  of 
May  31,  1893,  P.  L.  is:,.     Calkins  et  al  v  Keely 
3D.  R.  339  (C.  P.  2,  1894). 

244.  Rule  for  an  issue  in  Sheriff's  Interpleader.     Act  of 

May  26,  181)5,  P.  L.  95. 

245.  Rule  to   show  cause   why  plaintiff  in   Mechanics' 

Lien  should  not  file  affidavit  of  amount  actually 
due.  Act  of  June  4,  1901,  sec.  25,  P.  L.  431. 
Same  in  Municipal  Claim.  Act  of  June  4,  1901, 
sec.  15,  P.  L.  3G4. 

246.  Rule  to  show  cause  why  scire  facias  sur  Municipal 

Claim  should  not  issue.  Act  June  4,  1901,  sec. 
16,  P.  L.  364,  and  under  section  15. 

Why  defendant  should   not  enter  security   in 
lien  of  the  claim. 


90  MOTIONS  AND  RULES  AT  COMMON  LAW. 


VII. 


The  Statement  of  Claim. 


1.  The  Act  of  Assembly  approved  May  25,  1887,  P.  L. 
271,  effected  great  changes  in  the  forms  of  practice, 
actions  based  on  the  contractual  relation  being  grouped 
under  assumpsit  and  those  ex  delicto  iu  trespass.  The 
Act  was  supplemented  in  Philadelphia  by  the  Rule 
adopted  by  the  Courts  of  Common  Pleas  (Rule  30,  sec. 
2,  3,  and  4).  Section  3  of  which  requires  the  statement 
of  claim  to  be  fortified  by  the  affidavit  of  plaintiff  as  to 
the  truth  of  the  averments,  and  this  whether  it  is  au 
action  in  assumpsit  or  trespass.  The  act  itself  does  not 
require  it.  Under  the  old  practice,,  before  the  act  of 
1835,  the  plaintiff  filed  a  declaration,  and  it  was  to  the 
cause  of  action  set  out  therein  that  defendant  made  his 
affidavit.  In  Dewey  v.  Dupuy,  2  W.  &  S.  556  (decided  by 
the  Supreme  Court  in  1841),  Judge  Sergeant,  who  had 
been  a  judge  of  the  District  Court,  and  had  in  his  mind 
the  old  practice,  says  that  the  plaintiff  may  file  a  declar- 
ation or  statement,  and  "  defendants  may  be  compelled 
to  answer  the  averments  contained  in  them."  The  judge 
was  arguing  that  a  declaration  was  not  necessary,  though 
it  might  be  filed,  and  the  point  decided  in  the  case,  in- 
deed, was  that  a  narr.  was  not  necessary  to  support  a 
'  •  lament  for  want  of  a  sufficient  affidavit  of  defence. 


MOTIONS  AND  RULES  AT  COMMON  LAW.  cji 

Yet  the  incidental  expression  that  defendants  might  be 
compelled  to  answer  averments  (coupled,  perhaps,  with 
some  expressions  by  Rogers,  J.,  in  Bank  of  ( 'nited  States 
V.  Thayer,  at  the  same  term,  2  W.  &  8.  447),  was  made 
the  foundation  of  a  practice  extending  the  affidavit  of 
defence  law,  by  means  of  supplementary  averments,  to 
cases  which  had  not  previously  been  considered  with  in 
the  act.     Without  going  through  the  cases  in  detail,  it  is 
sufficient  to  say  that  the  present  practice  is  settled  in 
Imhoff  v.  Brown,  30  Pa.  504   (1858)   where  the  rule  is 
laid  down  by  Porter,  J.,  as  the  better  practice  k'  to  eon- 
fine  the  plaintiff  to  his  copy,  and  a  statement  respecting 
the  extent  of  his  claim,  and  his  right  to  sue,  and  not  to 
permit  him  to  allege  facts  against  the  defendant,  in  the 
absence  of  which  a  recovery  would  be  impossible."     In 
Dickerson  v.  McCausland,  3  W.   N.  C.  327   (C.  P.  3, 
1877),  the  rule  is  expressed  by  Ludlow,  P.  J. :  "  The  func- 
tion of  an  averment  supplementing  a  copy  tiled  is  to 
liquidate  a  sum  for  which   the  defendant's  liability  is 
fixed  by  the  instrument  sued  on."    In  Detmold  v.  Coal 
Co.,  3  W.  N.  C.  5G7  (U.  S.  D.  C.  1876),  Cadwalader,  J., 
says,  the  "  book  entries  filed  to  assist  the  assessment  of 
damages  tend  to  extend,  and  not  to  limit  the  claim,  as 
shown  by  the  copies  of  the  instruments  of  writing    Such 
a  purpose  is  not  within  the  rule  allowing  averments  to  be 
filed  with   copies  of   instruments."     Put   in   Collins   v. 
O'Toolc,  3  W.  N.  C.  564  (C.  P.  4,  1877)  ;  Koelle  v.  Eng> 
bert,  4  W.  N.  C.  202  (C.  P.  4,  1877;  Morris  v.  Ouier,  5 
W.  N.  C.  132  (S.  C.  1878)  ;  Fox  v.  Mausman,  5  W.  N.  C. 
511  (C.  P.  4,  18781  ;  Scott  v.  Loughrey,  (J  \Y.  X.  C.  123 
(C.  P.  1,  1878);  Bunting  v.  Allen,  Ibid.  L57   (C.  P.  3, 
1878)  ;  Oercke  v.  Montgomery,  [bid.  238  (C.  1\  3,  1878)  ; 
Dundore    v.   Dobson,   Ibid.    2«.»!>    (C.   P.   1,    1878),   and 
Comth  v.  Maguire,  12  W.  N.  C.  2.01  (C.  P.  2,  L882),  the 
effort  was  made,  unsuccessfully,  to  help  out  the  instru- 


92  MOTIONS  AND  RULES  AT  COMMON  LAW. 

ment  sued  on  by  an  averment  altering  or  extending  de- 
fendant's liability. 

These  were  the  conditions  which  developed  the  act  of 
May  25,  1887,  commonly  called  "  the  practice  act." 

2.  But  for  all  that,  there  was  no  attack  made  upon  the 
Act  itself,  its  constitutionality  does  not  seem  to  have  been 
assailed  seriously,  in  fact  no  case  involving  the  question 
appears  in  the  State  Reports  and  in  the  County  Courts 
but  one.  Honeywell  v.  Tonery,  5  Kulp,  360,  C.  P. 
Luzerne  County  decided  June  29,  1889,  by  Judge  Rice. 
The  report  of  the  case  does  not  indicate  that  stress  was 
laid  on  the  unconstitutionality  of  the  Act,  which  was  sus- 
tained in  a  two  line  sentence  in  the  beginning  of  Judge 
Rice's  opinion.  The  pioneer  case  under  this  act  in  the 
Supreme  Court  is  Gould  v.  Gage,  ct  al.,  118  Pa.  559,  de- 
cided Feb.  6,  1888,  reversing  C.  P.  No.  4  of  this  county, 
which  established  the  practice  as  to  the  requisites  in  the 
statement,  as  to  a  copy  of  the  instrument  basing  the  ac- 
tion, and  also  as  to  the  necessity  of  explicit  averments  in 
the  affidavit  of  defence,  showed  that  there  was  no  inten- 
tion on  the  part  of  the  Courts  to  recede  from  at  least  the 
spirit  of  the  earlier  practice,  even  if  the  ways  and  forms 
had  to  be  forsworn. 

This  was  followed  by  Byrne  v.  Hayden,  124  Pa.  170, 
decided  Feb.  11,  1889.  Mr.  Justice  Sterrett  in  deliver- 
ing the  opinion  of  the  Court,  says:  "The  Act  of  1887 
providing  for  filing  statement  of  claim,  etc.,  was  intended 
to  have  a  wider  scope  than  the  old  affidavit  of  defence 
law.  It  is  necessary,  however,  that  the  statement  should 
contain  all  the  ingredients  of  a  complete  cause  of  action 
averred  in  clear,  express  and  unequivocal  language,  so 
that  if  the  defendant  is  unable  to  controvert  or  deny  one 
or  more  of  the  material  averments  of  a  claim,  a  judgment 
in  default  of  an  affidavit  or  sufficient  affidavit  of  defence, 
may  be  entered  and  liquidated  "  and  again  in  Fritz  v. 


MOTIONS  AND  RULES  AT  COMMON  LAW.  93 

Hathaway,  135  Pa.  274.  (May  26,  1890)  Mr.  Justice 
Mitchell  speaking  for  the  Court,  says:  "As  to  all  mat- 
ters of  substance,  completness,  accuracy  and  precision 
are  as  necessary  n<»w  to  a  statemenl  as  they  were  before 
to  a  declaration  in  (he  settled  and  time  honored  forms." 
And  this  is  reiterated  by  Mr.  Chief  Justice  Sterretl  in 
similar  language  in  Peale  v.  Addicks,  171  Pa  543 
(1896). 

Rule  30,  see.  3.  (Rules  Courts  C.  P.  Philadelphia), 
requires  that  "Plaintiff's  statement  of  claim  shall  con- 
tain a  specific  averment  of  facts  sufficient  to  contain  a 
good  cause  of  action.  It  shall  he  supported  by  an  affi- 
davit of  the  truth  of  the  matters  alleged  as  the  basis  «.f 
the  claim  and  shall  in  all  cases  where  damages  are  capa- 
ble of  liquidation  contain  an  explicit  averment  of  the 
amount  due."  Unless  a  "good  cause  of  action"  be 
shown  in  the  manner  required  as  to  "completeness,  ac- 
curacy and  precision/'  a  rule  for  judgment  for  want  of 
a  sufficient  affidavit  of  defense  will  be  discharged:  Cap- 
ital City  Ins.  ('<>.  v.  Boggs,  172  Pa.  1)1  (1896)  ;  that  is  to 
say,  it  must  aver  every  fact  necessary  to  constitute  the 
cause  of  action:  Could  v.  Cage,  118  Pa.  .>:>!>  (1888). 
Although  informality  in  averring  them  will  not  impair 
its  validity,  >s'/„/7//  v.  Smith,  166  Pa.  353  (  L895)  ;  Aggue 
v.  Phila.  d-  Frankford  R.  A*.,  3  D.  R.  96  (0.  P.  1.  1 893  ) . 

Section  3  of  the  above  cited  rule  of  court  requires 
that  "  in  all  cases  where  damages  are  capable  of  liquida- 
tion [the  statement  of  claim]  shall  contain  an  explicit 
averment  of  the  amount  claimed  to  be  justly  due." 
This  was  interpreted  in  the  earlier  practice  under  the 
act,  that  the  averment  must  be  made  in  haec  verba. 
Could  v.  Cage,  118  Pa.  559  (  1888).  And  while  the  ex- 
act point  was  not  the  basis  of  the  reversal  of  the  lower 
court,  yd  many  practitioners  considered  it  authority  on 
the  interpretation  of  the  rule,  as  stated,  see  Schafer  v. 
Brotherhood,  22  w.  x.  c.  312,  (C.  P.  3,  i  iWvuUH)  in  lsss 


9±  MOTIONS  AND  RULES  AT  COMMON  LAW. 

after  Gould  v.  Gage.  But  Smith  et  al.  v.  Smith,  supra, 
settles  the  question  that  formality  in  the  statement  is  a 
non-essential;  the  court  (Mr.  Justice  Mitchell)  saying 
"  The  main  requirement  of  the  statement  under  the 
Act  [of  May  25,  1887,]  is  to  secure  to  the  defendant 
clear  and  exact  information  as  to  what  is  claimed  of 
him." 

This  same  rule  of  court  also  provides  that  "  the  truth 
of  the  matters  alleged  as  the  basis  of  the  claim  "  must 
be  sustained  by  plaintiff's  affidavit :  the  act  itself  making 
no  such  provision;  Ehrct  v.  Lewis,  7  Pa.  C.  C.  108  (Lu- 
zerne 1889).  Common  Pleas  No.  2  in  1888  in  Krauskopf 
v.  Stent,  21  W.  N.  C.  185,  required  an  affidavit  to  a  state- 
ment in  trespass. 

Where  the  action  is  on  quantum  meruit  the  statement 
must  aver  that  the  prices  of  goods  sold  and  delivered  as 
set  out  in  the  copy  rendered  are  the  usual  market  rates,, 
and  that  the  goods,  etc.,  were  of  the  standard  value:  so 
also  where  the  suit  is  for  services  rendered,  unless  the 
plaintiff  can  set  up  a  contract  stipulating  the  recom- 
pense for  the  services  and  that  they  were  rendered,  he 
must  aver  that  the  amount  claimed  is  usual  for  such, 
services  and  that  they  were  worth  the  amount  claimed, 
unless  he  do  this,  plaintiff's  statement  will  not  entitle 
him  to  summary  judgment  upon  an  insufficient  affidavit 
of  defence,  and  he  will  be  sent  to  a  jury  to  prove  his 
claim.     Murphy  v.  Taylor,  173  Pa.  317  (1896)., 

If  Plaintiff's  claim  be  based  upon  a  written  instru- 
ment it  must  show  a  prima  facie  present  existing  obliga- 
tion to  pay  money.  Creighton  v.  Nat'l.  Supply  Co.,  10 
D.  R.  600  (C.  P.  2,  Allegheny,  1901),  and  must  be  set 
out  in  full  in  the  statement,  if  brief,  cheque,  draft,  note 
of  hand,  or  a  few  item  bill,  let  it  be  incorporated  in  the 
body  of  the  statement,  but  if  long,  a  contract,  penal 
bond,  lease,  etc.,  it  should  be  attached  to  the  statement 
which  must  contain  an  averment  of  its  accuracy  and  it 
should  also  by  words  be  made  "  part  of  "  the  statement. 


MOTIONS  AND  RULES  AT  COMMON  LAW.  95 


VIII. 

Requisites  of  the  claim. 

1.  The  obligation  which  is  the  basis  of  the  claim, 
must  appear  to  be  present  at  the  time  of  suit. 
Therefore,  if  the  time  for  performance,  as  shown 
by  the  instrument,  has  not  arrived  (though  there 
may  be  a  present  right  of  action  on  other  grounds), 
there  can  be  no  judgment  on  the  copy.  Titus  v.  Bell,  4 
W.  X.  C.  380  (C.  P.  2,  1S77)  ;  and  even  if  the  apparent 
prematureness  of  the  suit  is  by  a  clerical  error  in  the 
copy.  Guskey  v.  S  parte,-,  1  W.  X.  C.  470  (C.  P.  2, 1875  1  ; 
Crcigliton  v.  Supply  Co.,  10  D.  R.  000  (C.  P.  2,  Alle- 
gheny, 1901). 

2.  It  must  be  absolute.  A  conditional  promise,  there- 
fore, is  not  sufficient.  Edeline  v.  Homestead  Ass'n.,  4 
W.  X.  C.  509  (C.  P.  1,  1877).  And  this  rule  excludes 
all  promises  which  are  merely  to  guarantee  or  indem- 
nify. Berustine  v.  Gavaghan,  1  W.  X.  C.  506  (C.  P.  2, 
1875)  ;  Artisans'  Ass',,,  v.  Noris,  1  W.  X.  C.  110  (D.  C. 
1874);  Hcott  v.  Loughery,  0  W.  X.  C.  123  (C.  P.  1, 
(1878). 

3.  It  must  be  on  the  defendant.  Therefore  book  en- 
trios  which  do  not  contain  any  name  are  insufficient. 
Wail  v.  Dovey,  00  Pa.  212;  Rothermel  v.  Polytechnic 
Coll.,  7  \Y.  X.  C.  16  (C.  P.  3,  1879),  or  which  contain 
only  defendant's  last  name,  Williamson  v.  Earp,  5  W. 
N.  C.  40  (C.  P.  4,  1877),  or  a  deed  to  defendant,  doI 
signed  by  him,  even  though  it  may  support  an  action, 
Morris  v.  Guier,  5  \Y.  X.  C.  132  ( S.  0.  L878),  or  where 


96  MOTIONS  AND  RULES  AT  COMMON  LAW. 

the  obligation  does  not  appear  to  be  from  defendant  to 
the  plaintiff.  Prahl  v.  Smoltz,  6  W.  N.  C.  571  (S.  C. 
1879). 

4.  It  must  be  to  pay  money.  An  agreement  to  pay  in 
goods,  or  in  trade,  etc.,  is  not  within  the  act.  Cozens  v. 
Thayer,  1  W.  N.  C.  207  (C.  P.  3,  1875)  ;  Gould  v.  Rich- 
ardson, 33  Leg.  Int.  158.  But  an  agreement  primarily 
payable  in  money,  is  not  taken  out  of  the  act  by  an  op- 
tion on  the  part  of  the  debtor  to  pay  in  goods.  See 
gingerly  v.  Caldwell,  S8  Pa.  312.  It  is  well  settled  that 
a  promise  to  pay  in  goods,  not  performed  according  to 
its  tenor,  becomes  an  obligation  to  pay  in  money.  Moore 
v.  Kiff,  2  W.  N.  C.  451  (S.  C.  1876)  ;  gingerly  v.  Arm- 
strong, 5  W.  N.  C.  139  (S.  C.  1878).  The  judgment  for 
want  of  an  affidavit  of  defence,  however,  being  a  special 
statutory  remedy,  does  not  necessarily  follow  a  right  to 
recover  in  money,  and  in  the  class  of  cases  last  men- 
tioned therefore,  in  which  the  primary  obligation  is  only 
to  pay  in  goods,  the  plaintiff  will  not  be  entitled  to  such 
judgment  unless  in  exceptional  cases,  where  the  default 
of  the  defendant  by  which  the  obligation  has  become  pay- 
able in  money  appears  on  the  face  of  the  instrument,  as, 
e.  g.,  where  the  duty  was  to  deliver  the  goods  at  a  stip- 
ulated time  before  the  suit  was  commenced.  Where 
the  goods  are  to  be  demanded  by  the  plaintiff,  the  instru- 
ment is  not  within  the  act.  Fox  v.  Manxman,  5  W.  N.  C. 
511  (C.  P.  4,  1878).  Nor  is  an  instrument  transferring 
or  pledging  title,  though  it  contains  an  admission  of 
debt.    Vandike  v.  Ward,  8  W.  N.  C.  418  (C.  P.  2,  1880). 

5.  The  instrument  sued  on  may  consist  of  more  than 
one  writing.  Thus,  a  bond  to  pay  money  or  lease  with 
covenant  of  lessee  to  pay  rent  and  a  separate  covenant 
of  suretyship  is  a  good  instrument  against  the  surety. 
Korn  v.  Holil,  80  Pa.  333  (1876)  ;  or  a  written  contract 


LAW  DEPARTMENT. 

MOTIONS  AND  RULES  AT  COMMON  LAW.  97 

of  suretyship  and  book  entries  against  the  principal. 
Seltzer  v.  Greenwald,  2  W.  N.  C.  395  (C.  P.  1,  L875)  ; 
Howell  v.  Herold,  6  W.  X.  C.  4:51  (C.  P.  2,  1878).  So 
where  it  is  desired  to  obviate  a  defence  which  has  been 
rendered  inadmissible  by  writing,  as,  e.  <j.,  by  a  certifi- 
cate of  no  set-off  to  a  mortgage.  Hunter  v.  Campbell,  1 
W.  N.  C.  109  (D.  C.  1874)  ;  or  a  written  agreement  on 
which  accommodation  notes  were  given.  Rhine  v. 
Rheinstrom,  1  W.  N.  C.  131  (D.  C.  1874)  ;  or  a  bond  of 
one  not  a  party  for  payment  of  costs  and  decree  fixing 
amount.  Kase  v.  Greenough,  7  W.  N.  C.  535  (S.  C. 
1879). 

6.  An  important  class  of  cases,  namely,  those  arising 
upon  instruments  which  are  executory  on  the  plaintiff's 
part,  or  which  from  any  reason  require  averments  sup- 
plementary to  the  copy  filed,  to  complete  the  showing  of 
defendant's  liability,  have  been  the  source  of  difficulty 
and  of  discrepancy  in  the  decisions  from  time  to  time 
since  the  beginning  of  statutory  judgments  for  want  of 
affidavits  of  defence. 

Under  the  agreement  of  the  bar  alluded  to  (Post 
p.  114),  an  affidavit  was  required  in  all  cases;  and 
under  the  rules  of  court  subsequently  adopted,  the  atli- 
davit  was  required  in  all  actions  of  debt  or  contract. 
See  Vanatta  v.  Anderson,  3  Binn.  417  (1811  i  ;  and  West 
v.  Simmons,  2  Wh.  261  (1837). 

The  class  of  cases  which  we  are  now  considering  were, 
therefore,  clearly  within  the  practice  up  t<>  the  passage 
of  the  act  of  28th  March,  L835.  That  a.i  was  the  first 
legislative  sanction  of  judgments  for  want  of  affidavits 
of  defence,  and  it  made  two  notable  changes  in  the  exist- 
ing practice.  The  old  practice  had  only  required  the  de- 
fendant to  swear  that  "  to  tie-  best  of  his  know  ledge  and 
belief  there  was  a  jusl  defence"  (3  Binn.  417  i  ;  the  new 
act  required  him  to  state  in  hisaffidavil  "  the  nature  and 
character"  of  the  defence,  that   is,  to  submit  the  suffl- 

7 


98  MOTIONS  AND  RULES  AT  COMMON  LAW. 

ciency  of  it  to  the  judgment  of  the  court.  But,  on  the 
other  hand,  the  act  relieved  the  defendant  from  the 
necessity  of  an  affidavit,  except  in  the  specified  cases  of 
actions  on  bills,  notes,  and  instruments  for  the  payment 
of  money.  Of  course  the  question  at  once  arose  as  to 
what  were  instruments  for  the  payment  of  money  within 
the  meaning  of  the  act,  and  it  was  held  that  they  must  be 
for  absolute  payment,  and  not  merely  conditional  or  for 
indemnity.  The  special  class  of  executory  instruments, 
in  which  something  still  remains  to  be  done  by  the 
plaintiff,  which  we  are  now  considering,  came  before 
the  District  Court  in  1830,  in  Montgomery  v.  Johnston, 
1  Miles,  325,  (D.  C.  1S3G),  and  were  held  not  to  be  within 
the  then  recent  act.  This  continued  to  be  the  practice 
until  1850,  when  the  District  Court,  under  the  influence 
of  Dciccy  v.  Dupuy,  2  W.  &  S.  556,  to  which  reference 
will  be  made  presently,  changed  its  ground,  and  in  Rile  v. 
Worl,  1  rhila.  45,  (D.  C.  1850),  entered  judgment  upon 
such  an  instrument.  How  long  this  new  turn  in  practice 
continued  the  reports  do  not  enable  me  to  say,  "  but  " 
said  Mr.  Justice  Mitchell  in  his  first  edition  of  Motions 
and  Rules,  "  I  have  the  authority  of  Judge  Hare's  recol- 
lection that  it  was  not  long,  and  I  find  on  the  margin  of 
my  1  Philadelphia  Reports  a  note  of  my  own,  that  in 
March,  1873,  when  Rile  v.  Worl  was  cited  in  the  Dis- 
trict Court,  it  was  unanimously  repudiated,  with  the  re- 
mark that  the  practice  was  long  settled  against  it."  The 
question,  however,  would  seem  to  be  irrepressible,  for  it 
came  up  again  before  the  Court  of  Common  Pleas  No.  4, 
in  Sutton  v.  Athletic  Club,  4  W.  N.  C.  90  (C.  P.  4,  1877) 
and  that  court  gave  judgment  upon  an  executory  agree- 
ment closely  similar  to  the  one  in  Rile  v.  ^Yorl;)  citing 
that  case  as  an  authority.81 


81  Journal  v.  Reeves,  17  W.  N.  C.  222  (C.  P.  1,  1885),  was 
decided  upon  the  authority  of  Sulton    v.  A.  Club. 


MOTIONS  AND  HULKS   AT  COMMON  LAW.  99 

There  docs  not  seem  to  be  any  decision  upon  tin-  ques- 
tion by  the  Supreme  Court.  The  our  coming  nearesl 
to  it  is  Fertig  v.  Maley,  5  VV.  X.  C.  133  (S.  C.  LS78)  in 
which  a  judgment  was  sustained  on  an  agreement  by 
which  plaintiff  sold  to  defendant  all  the  ice  that  should 
be  formed  on  a  certain  point,  and  covenanted  not  to  in- 
terfere1 with  the  Cutting,  etc.  This  case,  however,  docs 
not  touch  the  real  point  of  controversy,  for  the  defendant 
had  promised  to  pay  a  sum  certain  at  a  time  fixed,  which 
had  expired  before  suit  brought,  and  the  only  executory 
undertaking  of  plaintiff  was  not  to  interfere,  a  negative 
which  the  law  would  presume  for  him  in  the  absence  of 
evidence  to  the  contrary. 

Sutton  v.  Athletic  Club  was  not  followed  by  any  other 
court,  though  there  are  a  few  cases  which  indicate  that 
the  weight  of  a  considered  opinion  by  the  learned  presi- 
dent of  court  Xo.  4  has  not  been  without  its  natural  ef- 
fect, in  producing  a  hesitation  and  uncertainty  upon  the 
subject.  There  are,  however,  later  cases  in  all  the  other 
courts  of  this  county  (reference  to  which  will  he  made 
presently  in  discussing  the  subject  of  averments)  which 
are  inconsistent  in  principle  with  that  decision,  and 
which  must  be  taken  as  virtual  refusals  to  follow  it. 
Notwithstanding  that  decision,  therefore,  the  estab- 
lished present  general  rule  of  practice  is  that  instru- 
ments for  the  payment  of  money  dependent  on  a  consider- 
ation which  is  executory  on  the  part  of  plaint  ill',  are 
not  within  the  affidavit  of  defence  law,  whether  aided  by 
supplementary  averments  or  not.82 

7.    Besides  agreements  executory  in  the  sense  we  have 


82  Courl  of  Common  Pica-.  X".  2  (1881)  in  King  v.  Exhi- 
bition Co.,  ]»i  W.  X.  <'.  190,  declined  t<>  recognize  Sutton  v. 
Athletic  cinli.  ae  authority  and  was  followed  in  this  dei  < 
by  ('.  1'.  No.  •;.  in  1882  in  Farren  v.  Earned,  L2  W.  X.  ('.  16. 


100  MOTIONS  AND  RULES  AT  COMMON  LAW. 

been  considering',  there  are  a  large  class  of  cases  in  which 
the  instrument  sued  on  does  not  show  a  complete  liabil- 
ity on  the  part  of  the  defendant  without  the  aid  of  sup- 
plementary averments.  The  scope  of  such  averments 
has  been  the  subject  of  much  discussion  and  some  dis- 
crepancy in  the  decisions,  and  though  it  is  now,  and  has 
been  for  a  considerable  time,  pretty  well  settled,  yet  the 
persistency  with  which  it  comes  up  again  and  again 
shows  that  it  is  one  of  the  questions,  like  that  of  execu- 
tory agreements,  which  will  not  stay  settled  without  a 
considerable  effort  of  the  courts  to  preserve  consistency 
in  the  decisions. 

Under  the  old  practice,  before  the  act  of  1835,  the 
plaintiff  filed  a  declaration,  and  it  was  to  the  cause  of 
action  set  out  therein  that  defendant  made  his  affidavit. 

Under  the  Act  of  1887  the  practice  has  returned 
to  the  same  rule,  and  what  is  said  under  the  present  heal 
(VIII)  as  to  the  requirements  of  the  instrument  on 
which  the  action  is  founded  must  be  read  in  connection 
with  that  rule. 

8.  Of  course  the  plaintiff  is  entitled,  in  addition  to  the 
actual  language  of  the  instrument  sued  on,  to  the  aid  of 
all  the  facts  and  the  law,  of  which  the  court  will  take 
judicial  notice.  Thus  the  lapse  of  time,  by  which  the 
promise  to  pay  has  become  a  present  obligation,  will  be 
considered  by  the  court;  and  so  the  legal  effect  of  acts 
which  appear  on  the  instrument,  as,  c.  g.,  the  indorse- 
ment of  commercial  paper,  etc.  McConeghy  v.  Kirk,  68 
Pa.  200  (1871). 

9.  The  general  rule,  then,  by  which  to  test  the  suffi- 
ciency of  an  instrument  of  writing,  to  entitle  plaintiff 
to  judgment  for  want  of  an  affidavit  of  defence,  is  that 
it  must  upon  its  face,  with  the  aid  of  such  matters  of 
fact  or  law  as  the  court  trill  take  judicial  notice  of,  show 
a  prima  facie  present  obligation  on  the  defendant  to  pay 
money. 

The  rule  is  frequently  expressed  in  the  concise  and 
admirable  pratical  test,  could  the  plaintiff  go  to  the  jury 
on  proof  of  the  writing  filed,  without  more?    Ins  Co.  V. 


.motions  and  rules  at  common  law.  ioi 

Brierly,  10  W.  N.  C.  45  (S.  C.  188]  >,  sec  also  Lovi  v.  />'/</. 
A.,  11  W.  N.  C.  303  (C.  P.  2,  1882). 

This  is  the  rule  to  which  the  decisions  time  and  again 

return,  and  which  may  be  considered  as  the  present  es- 
tablished rule.  It  is  a  plain,  practical,  and  practicable 
rule,  which  ought  not  to  be  disturbed  or  departed  from 
without  good  reason. 

10.  The  copy  of  the  instrument  of  writing  sued  on 
should  be  distinctly  entitled  as  such,  and  must  be  aver- 
red to  be  an  exact  copy.83 

11.  In  Graff  v.  Chrisman,  2  W.  X.  C.  66   (C.  P.  2, 

1875),  it  was  decided  that  a  mere  bill  was  not  a  good 
copy  of  book  entries,  but  it  has  been  since  settled  differ- 
ently by  the  Supreme  Court.  In  Snyder  v.  Richardson, 
3  W.  N.  272  (C.  P.  2,  1870)  no  question  was  raised  as  to 
the  copy  being  a  bill,  and  the  only  points  made  by  the 
defendant  were  that  the  copy  was  not  entitled  as  a  copy 
on  the  face  of  it,  but  merely  indorsed  on  the  outside  of 
the  paper  as  such,  and  that  there  was  a  variance  between 
the  copy  filed  and  the  original  entries  on  the  books. 
There  had  been  some  little  tendency  in  the  courts  towards 
vacillation  on  the  question  of  the  sufficiency  of  a  mere 
billhead,  but  the  practice  had  been  settled  in  the  District 
Court,  and  the  Court  of  Common  Pleas  No.  2  had  fol- 
lowed it  in  Graff  v.  Chrisman,  2  W.  N.  C.  66.     No  such 


88 The  copy  must  be  set  out  in  the  statement, attached  t«>  it 
andby  averment  made  part  of  it,  A  erne  Co.  v.  Reid,  L81  Pa.  382; 
and  it  must  Ik-  of  the  whole  instrument.  Lee  v.  Cooper,  8  I'm.  C. 
c.  isi  (('.  1'.  3,  L890) ;  while  tho  statemenl  Deed  do!  own  that 
the  contract  sued  on  is  in  parol  or  writing,  Lentz  v.  Carey,  8 
Kulp,  259  (Luzerne  L896).  If  it  l»-  in  writing  it  is  no!  Buffi- 
cienl  to  charge  the  defendant  unless  it  i.-  set  out.  /;</»/,•  v.  Gard- 
ner, 171  Pa.  '.'<;•;   (1895). 


102  MOTIONS  AND  RULES  AT  COMMON  LAW. 

question,  therefore,  was  raised  or  intended  to  be  decided 
in  Snyder  v.  Richardson.  But  when  this  case  came 
before  the  Supreme  Court,  6  W.  N.  C.  414,  it  was  argued 
on  an  entirely  different  ground,  and  the  court  not  only 
affirmed  the  judgment  on  the  ground  on  which  it  had 
been  decided,  viz.,  that  advantage  of  a  variance  could 
only  be  taken  by  a  rule  to  produce  the  original  for  inspec- 
tion, but  also  added  that  the  billhead  was  mere  surplus- 
age, which  did  not  vitiate  the  copy. 

12.  It  is  always  advisable  that  the  copy  should  be 
carefully  compared  with  the  original  before  suit. 
Should  the  variance  be  such  as  to  make  it  a  substantially 
different  instrument,  even  though  by  a  mere  clerical 
slip  in  the  date,  amount,  etc.,  plaintiff  runs  the  risk  of 
an  affidavit  that  will  be  sufficient  to  prevent  judgment, 
and  put  him  to  the  delay  of  a  jury  trial,  or  to  a  discon- 
tinuance and  a  new  action  with  a  correct  copy. 

13.  Inaccuracy  of  the  copy  of  instrument  sued  on, 
hoAvever,  unless  amounting  to  a  substantial  defect  which 
will  enable  the  defendant  to  deny  the  cause  of  action 
thereby  set  forth,  is  not  in  general  a  safe  ground  on 
which  to  rest  an  affidavit,  but  defendant  should,  as  al- 
ready mentioned,  rule  the  plaintiff  to  produce  the 
original  books  or  writings  for  inspection,  and  the  vari- 
ance can  then  be  taken  advantage  of.  Richardson  v. 
Snyder,  6  W.  N.  C.  414  (S.  C.  1879). 

It  may  be  raised  by  specific  allegations  of  variance. 
Laubaitch  v.  Myers,  147  Pa.  447  (1892). 

14.  The  copy  may  contain  abbreviations  or  technical 
words,  and  will  nevertheless  be  sufficient  if  intelligible 
to  persons  in  the  business.  If  the  whole  copy  is  so  ob- 
scure that  defendant  cannot  understand  what  is  thereby 
charged  against  him,  he  should  so  aver  in  his  affidavit. 


MOTIONS  AND  RULES  AT  COMMON  LAW.  1Q3 

A  mere  suggestion  to  that  effect  is  not  sufficient.  Brown 
v.  Dupuy,  4  W.  X.  491  (S.  C.  1S77)  ;  and  s.v  Barraos  v. 
Brandeis,  1  W.  X.  C.  7  (I).  (\  1S74  i  ;  Miller  v.  Brandeis, 
1  W.  X.  C.  62  (D.  C.  1874);  Catherwood  v.  Moore,  1 
W.  X.  C.  109  (D.  C.  1874)  ;  Graf  v.  Chrisman,  2  \V.  X. 
C.  06  (C.  P.  2,  1875)  ;  llilrr  v.  Kohler,  2  W.  X.  (\  07 
(C.  P.  2,  1874)  ;  and  Coopei  v.  Ranakin,  2  W.  X.  C.  428 
(C.  P.  3,  1876). 


84  If  the  allegation  of  inaccuracy  is  general,  the  plaintiff 
may  produce  the  original  instrument  and  the  court  will  pass 
upon  the  question.  Bancroft  v.  Haines,  2  D.  R.  373  (C.  1'.  !. 
1892). 

The  act  of  May  21,  1887,  P.  L.  271,  has  not  changed  this 
practice.  Warneche  v.  Sherman,  22  W.  X\  ('.  225  (C.  P.  4, 
1888)  ;  Bancroft  v.  Haines,  31  W.  X.  C.  248  (C.  P.  4,  1892)  ; 
nor  has  it  raised  the  standard  as  to  accuracy  in  affidavits  of  de- 
fence (Hare  P.  J.  in  Boomer  v.  Henry,  2  D.  R.  357  C.  P.  2, 
1893). 


104  MOTIONS  AND  RULES  AT  COMMON  LAW. 


IX. 

Affidavit  of  defence. 

1.  Section  6  of  the  act  of  May  26,  1887,  requires  de- 
fendant to  file  an  affidavit  of  defence  in  fifteen  days  after 
service  of  the  statement  of  claim  upon  him.  In  comput- 
ing the  fifteen  days  the  day  of  service  of  the  statement 
is  not  counted. 

The  affidavit  of  defence  must  be  made  by  the  defend- 
ant himself,85  or  if  there  are  special  reasons  why  that 
cannot  be  done,  they  must  be  set  forth  so  that  the  court 
may  judge  of  their  sufficiency ;  and  in  that  case  the  per- 
son who  makes  the  affidavit  must  also  set  forth  specifi- 
cally his  means  of  knowledge  of  the  facts.  This  is  and 
has  been  the  settled  practice  for  a  long  time,  notwith- 
standing Sleeper  V.  Dougherty,  2  Whart.  177;  Hunter 
V.  Reilly,  36  Pa.  509;  and  some  other  cases  which  seem 
to  allow  a  looser  rule.  See  Marshal  v.  Witte,  1  Phila. 
117  (D.  C.  1850)  ;  City  v.  Devine,  1  W.  N.  C.  358  (C.  P. 
2,  1875)  ;  Stollaker  v.  Lardner,  Id.  169  (C.  P.  4,  1875)  ; 
Russell  v.  Foran,  Id.  470  (C.  P.  2,  1875)  ;  City  v.  Peter- 
son, 3  W.  N.  C.  292  (C.  P.  4,  1876)  ;  City  v.  Gross,  2  W. 
N.  C.  429;  Cowperthwqit  v.  Roney,  10  W.  N.  C.  482  (C. 
P.  4,  1881)  ;  Kramer  V.  Cameron,  17  W.  N.  C.  220  (O.  P. 
1,  1886).     A  good  practice,  not  so  often  followed  as  it 


85  Even  though  he  will  be  incompetent  as  a  witness  at  the 
trial  to  prove  the  matters  averred  in  affidavit.  Schachenman  v. 
Vollrath,  1  W.  N.  C.  149  (0.  C.  P.  1875). 


MOTIONS  AND  RULES  AT  COMMON  LAW.  ],,- 

should  be,  is  to  have  the  defendant's  own  affidavit,  as  far 
as  his  knowledge  or  information  permit  him  t « »  u«».  mak- 
ing reference  to  and  supported  by  the  additional  affidavit 
of  the  party  specially  cognizant  of  the  facts.  Sec  Bank  v. 
Detwiler,  8  D.  R.  515  (Northampton,  1899).  Kale  3 
of  the  Court  of  Common  Pleas  of  Philadelphia,  requires 
executors  and  "others  sued  in  a  representative  capac- 
ity" to  make  affidavit  of  defence.  But  the  rule  by  its 
terms  is  complied  with  if  the  affidavit  avers  that  the 
affiant  has  made  diligent  inquiry  and  has  not  been  able 
to  secure  sufficient  information  to  enable  him  to  set  forth 
particularly  the  character  and  nature  of  the  defence  but 
that  he  believes  there  is  a  just  and  legal  defence.86 

Fifteen  full  days  after  serving  a  copy  of  the  statement 
and  of  the  rule  to  file  affidavit  of  defence  or  to  plead — 
according  as  the  case  was  in  assumpsit  or  trespass  to 
plead  in  default  of  such  affidavit  or  plea  on  motion 
entered  in  the  prothonotary's  office  judgment  may  be 
entered  by  default.  Proof  of  service  of  the  copy  of  state- 
ment and  rule  must  accompany  or  be  part  of  the  motion 
but  the  averments  of  how  the  serive  was  made  must  be 
explicit.  Connolly  v.  Wilson,  6  Pa.  C.  C.  421  (Law- 
rence, 1889).  Service  of  these  copies  however  may  be 
made  upon  defendant  at  any  place.  (Cochran  v.  Pyle,  10 
Pa.  C.  C.  198  (Chester,  1898).  And  may  be  made  even 
before  the  summons  is  served.  Roseman  v.  Haydock, 
21  W.  N.  C.  121  (C.  P.  2,  1888),  but  the  most  satisfac- 
tory method  is  to  let  the  sheriff  serve  the  copy  of  state- 


80  An  averment  in  the  affidavit  that  "defendant  is  informed 
that"  (a  certain  fad  essential  to  plaintiff's  can',  and  alleged  in 
the  statement  of  claim)  "is  not  true"  is  insufficient  to  prevent 
judgment.  /'///A/,  to  use  v.  Pearson,  211  Pa.  382  (  L904).  X;  r 
'cannot  it  aver  as  defense,  both  non-payment  and  compromise 
and  request  a  certificate;  Hibberd  V.  Mullen,  14  D.  R.  U9  ( < '. 
I".  :;.  L905). 


106  MOTIONS  AND  RULES  AT  COMMON  LAW. 

ment  and  rule  at  the  time  he  serves  the  summons  on 
defendant.  If  the  statement  is  found  to  be  wanting  in 
respect  to  any  material  averment,  either  that  it  is  im- 
properly or  insufficiently  stated,  plaintiff  may  have 
leave  to  file  an  amended  statement.  Generally  speaking 
an  affidavit  of  defence  may  not  be  demanded  to  an 
amended  statement  Niagara  Ins,  Co.  v.  Thorn,  4  Pa.  C. 
C.  308,  (C.  P.  1887)  but  the  court  in  allowing  an  amend- 
ment to  statement  may  stipulate  that  judgment  may 
be  entered  for  want  of  a  sufficient  affidavit  of  defence 
with  a  reasonable  time.  Hoke  v.  Martin,  7  York  L.  R. 
65  (York,  1893). 

If  counsel  makes  the  affidavit  it  must  be  a  positive 
averment  of  his  own  knowledge.  Russell  v.  Foran  supra 
Crine  v.  Wallace,  1  W.  N.  C.  293  (S.  C.  1874).  Plain- 
tiff cannot  dispute  the  right  of  one,  who  has  bound 
himself  to  pay  a  judgment  which  may  be  recovered  on  a 
claim  against  another,  in  a  suit  against  the  principal 
debtor.  Urich  v.  Zcm,  2  D.  R.  55  (Lebanon,  1892).  In 
the  absence  or  incapacity  of  defendant,  another  who  has 
full  personal  knowledge  of  the  facts,  may  make  affidavit 
of  defence  in  defendant's  stead,  but  the  averments  must 
be  full  and  precise.  Beattie  v.  Dcicliler,  15  W.  N.  C. 
224  (C.  P.  1,  1884)  ;  Rau  v.  Lex,  2  Mona.  87  (1889). 

2.  The  affidavit  must  be  a  specific  statement  of  facts. 
The  words  of  the  act  of  1835  are  that  it  must  set  forth 
"  the  nature  and  character  "  of  the  defence.  Under  this 
it  has  been  uniformly  held  that  affidavits  merely  argu- 
mentative, or  containing  only  inferences  or  conclusions 
of  law,  are  bad.  So  if  the  averments  are  merely  general, 
especially  where  they  use  words  which  raise  mixed  ques- 
tions of  law  and  fact,  such  as  payment,  warranty,  sur- 
render, etc.,  and  allegations  of  fraud.  In  all  these  cases 
it  is  necessary  to  set  out  the  facts,  as,  e.  g.,  when,  how, 
and  to  whom  the  payment,  surrender,  etc.,  was  made, 


MOTIONS  AND  RULES  AT  COMMON  LAW.  107 

the  specific  acts  or  representations  which  arc  alleged  to 
constitute  fraud,  etc.,  and  without  such  facts  no  general 
averments  that  defendant  lias  a  "just,  full  and  Legal 
defence"  or  "is  not  indebted  to  plaintiff  in  any  sum 
whatever  "or  any  similar  phrases  will  be  sufficient  to 
prevent  judgment.  Noble  v.  Kreuskamp,  111  Pa.  68 
(1886). 

An  affidavit  of  defence  which  sets  forth  facts  in  them- 
selves insufficient  is  not  made  good  by  a  general  aver- 
ment that  defendant  has  a  "  just  and  true  defence  to  the 
whole  of  plaintiff's  claim.  Kelly  v.  Shillingsburg,  L*  Pa. 
Super.  Ct.  576  (1896).  And  where  there  is  an  absence 
of  specific  denial  of  facts  in  plaintiff's  statement  in  case 
of  doubt,  construction  will  be  against  the  affidavit.  Mc- 
Kay ct.  al.  x.  McKenna,  173  Pa.  581  (1896). 

3.  In  form  the  affidavit  may  be  either  a  categorical 
averment  of  the  facts,  as  of  affiant's  own  knowledge,  or 
it  may  be  upon  information  and  belief.  Ellison  v.  Freil- 
ing,  1  W.  N.  C.  109  (D.  C.  1874).  If  intended  to  fall 
within  the  latter  class,  the  established  formula  is  that 
deponent  is  in  formed,  believes,  and  expects  t<>  be  al>l<'  t<> 
prove  the  facts  set  out.  This  formula  into  which  the 
long  experience  of  the  District  Court  had  crystallized, 
has  not  been  always  regarded  by  the  Supreme  Court  in 
the  reported  cases,  but  it  has  been  steadily  adhered  to 
by  the  courts  of  Philadelphia  County,  and  it  is  believed 
will  always  be  recognized  by  the  Supreme  Court  when 
their  attention  is  directed  to  a  departure  from  it.  See 
Black  v.  Halstead,  3!)  Pa.  61  (  186]  )  ;  Hermann  v.  Ram- 
say, 5  W.  N.  C.  188  (S.  0.  1878)  ;  ami  Boothe  v.  Alex- 
ander, 4  \Y.  N.  <\  942  (S.  C.  1S77). 

A  rough  but  excellent  practical  test  of  the  sufficiency 
of  the  averments  in  point  of  form  is  expressed  in  He' 
popular  way  by  the  question— supposing  the  falsity  of 
the  facts  set  out,  are  the  averments  sufficiently  positive 


108  MOTIONS  AND  RULES  AT  COMMON  LAW. 

and  explicit  to  support  an  indictment  of  the  deponent 
for  perjury? 

If  the  facts  are  or  may  be  within  the  defendant's  per- 
sonal knowledge,  he  should  be  held  to  a  positive  aver- 
ment; and  even  when  his  affidavit  is  upon  information 
and  belief  it  should  be  put  into  the  established  form, 
and  made  as  specific  and  explicit  as  the  nature  of  the 
curcumstances  will  reasonably  admit.  Loan  Association 
v.  Brown,  4  W.  N.  C.  494  (C.  P.  3,  1877). 

The  use  of  the  phrases  "  verily  believes  to  be  true  "" 
and  expects  to  be  able  to  prove  "  originated  in  cases, 
where  the  defendant  was  not  able  from  the  nature  of 
things,  to  positively  aver  essential  facts  of  his  own  knowl- 
edge and  are  allowable,  for  the  purposes  of  his  affidavit 
to  .prevent  summary  judgment.  Boomer  v.  Henry,  2  D. 
K.  357  (C.  P.  2,  1S93,  by  Hare,  P.  J.)  ;  Pcnn  Bank  v. 
Wfg.  Co.,  4  D.  E.  46  (Blair,  1894). 

Where  the  defence  is  in  the  nature  of  confession  and 
avoidance,  affidavit  should  specify  amounts  so  as  to  give 
plaintiff  opportunity  to  admit  and  take  judgment  for 
balance.    Cosgrove  v.  Hammill,  173  Pa.  207  (1896). 

4.  If  written  instruments  are  referred  to  in  the  affi- 
davit they  should  be  set  out  as  exhibits.  Brown  v. 
Rogers,  3  W.  N.  C.  12  (C.  P.  4,  1876)  ;  Hoorer  v.  Mun- 
yon,  Id.  356  (C.  P.  4,  1877)  ;  Richards  v.  Bisler,  Id.  485, 
(S.  C.  1877);  Marsh  v.  Marshall,  53  Pa.  396  (1886);. 
Birkey  v.  Whitaker,  4  W.  N.  C.  137  (S.  C.  1877). 

5.  The  general  subject  of  the  sufficiency  of  the  affi- 
davit is  too  large  for  present  discussion,  let  us  therefore 
pass  over  it  with  the  single  observation  that  the  affidavit 
must  set  out  facts  sufficient  to  make  a  prima  facie  de- 
fence to  the  plaintiff's  claim,  and  that  it  is  sufficient  if 
it  does  so. 

It  must,  however,  meet  the  case  of  the  plaintiff  fairly,, 


MOTIONS  AND  RULES  AT  COMMON  LAW.  [QQ 

and  by  a  statement  of  facts,  not  by  a  mere  general  denial. 
Thus,  if  defendant  means  to  deny  a  Liability  appearing 

on  the  copy  filed,  he  must  set  forth  explicitly  in  his  alli- 
davit  the  facts  on  which  his  denial  of  Liability  rests,  as, 
e.  g.,  that  the  signature  purporting  to  be  his  is  a  forgery, 
etc.;  merely  saying  that  he  signed  no  such  writing,  or 
that  the  signature  is  not  his,  etc.,  being  insufficient,  un- 
less the  averments  are  full  and  broad  enough  to  cover 
all  contingencies,  such  as  signing  by  another  as  his 
agent,  or  by  his  request,  etc.  K needier  v.  Woodruff, 
1  W.  N.  C.  42  (C.  P.  1874)  ;  Ephraim  v.  Pollock,  1  W. 
N.  C:  102  (D.  C.  1874)  ;  Starr  v.  Phil  lips,  1  W.  N.  C. 
471  (C.  P.  2,  1875 ).86 

A  defence  good  at  the  time  of  filing,  however,  is  sutli- 
cient  to  prevent  judgment,  as,  e.  g.,  if  the  affidavit  sets 
up  another  suit  pending  for  the  same  cause  of  action 
it  is  sufficient,  and  a  subsequent  discontinuance  of  such 


86  In  his  note  (33)  on  page  57  of  "  Motions  ami  Rules  in  ( !om- 
nion  law"  Chief  Justice  Mitchell  humorously  comments  on  the 
then  prevailing  practice  in  the  way  of  allowing  defendants  to 
"  cobble  "  their  affidavits  of  defence 

"Perhaps  it  was  this  liberality  of  practice,  or  the  supposed 
present  tendency  of  the  Supreme  Court  to  greater  stringency 
against  defendants  on  affidavits  of  defence,  that  produced  the 
act  of  18th  April,  1874,  P.  L.  64,  allowing  writs  of  emu-  to  the 
refusal  of  a  judgment  for  the  insufficiency  of  the  affidavit.  For 
the  principles  by  which  the  Supreme  Court  will  be  guided  in 
such  cases,  see  Griffith  v.  Sitgreaves,  2  W.  N.  C.  707  (s.  0. 
1876)." 

"With  the  act  allowing  appeals  from  preliminary  injunctions 
(vltli  February,  1866,  P.  L.  28),  that  for  appeals  from  decisions 
on  rules  to  open  judgment  (4th  April,  L877,  P.  L.  53),  and  the 

act  above  referred  to,  we  shall  only  n 1  a  few  more  steps  in 

the  modern  process  of  getting  the  carl  before  the  horse,  to  reach 
that  comfortable  state  where  it  shall  be  the  rule  to  go  to  the 
Supreme  Court  at  the  outset,  and  gel  the  law  settled  in  advance, 
and  then  come  hack  to  the  court  inappropriately  termed  of  first 
instance,  and  find  out  whether  there  are  any  facts  in  the  case  to 
whieh  the  law  can  be  applied/' 


HO  MOTIONS  AND  RULES  AT  COMMON  LAW. 

suit  will  not  entitle  plaintiff  to  a  judgment  for  want  of 
a  sufficient  affidavit  in  this. 

G.  The  affidavit  is  conclusive,  for  the  purpose  of  pre- 
venting judgment,  upon  all  the  facts  properly  set  out  in 
it,  except  so  far  as  they  are  contradicted  by  the  record. 
Even  the  original  document  cannot  be  looked  at  to  con- 
tradict the  affidavit,  nor  can  any  other  paper  (e.  fj.,  a 
declaration  of  no  set-off)  unless  a  copy  has  been  filed  in 
accordance  with  the  statute.  Some  doubt  has  existed 
whether  the  Court  is  confined  to  the  record  of  the  case 
itself,  or  may  look  into  other  matters  of  record  in  the 
same  or  even  in  other  courts,  and  in  Smith  v.  Hopple, 
3  W.  N.  C.  27,  (C.  P.  4,  1876)  the  Court  of  Common 
Pleas  No.  4  seems  to  have  looked  at  the  record  of  an- 
other suit  to  determine  whether  or  not  it  was  pend- 
ing, though  the  affidavit  averred  that  it  was.  In  that 
case,  however,  the  affidavit  itself  referred  to  the  other 
suit,  and  should  have  set  out  at  least  the  docket  entries, 
in  accordance  with  the  rule  that  writings  referred  to 
must  be  set  out  (ante,  p.  107),  and  the  case  was  there- 
fore well  decided  on  the  insufficiency  of  the  affidavit 
in  merely  setting  forth  deponent's  information  and  be- 
lief when  the  fact  was  easily  capable  of  positive  ascer- 
tainment and  averment.  The  same  remarks  may  be 
made  in  regard  to  Richard*  v.  Bister,  3  W.  N.  C.  485 
(S.  C.  1877).  Both  cases  are,  however,  upon  the  border 
line.  The  sound  and  consistent  principle  is  that  the 
affidavit  cannot  be  contradicted  or  shown  to  be  false  ex- 
cept by  the  record  in  the  very  case  itself.  It  may,  how- 
ever, be  shown  to  be  false  by  this  record,  including  the 
copy  filed.  Warner  v.  Smith,  2  W.  N.  C.  107  (S.  C. 
1875)  ;  Furst  v.  Ayres,  2  W.  N.  C.  722  (S.  C.  1876) ; 
Hill  v.  Gaw,  4  Pa.  493  (1847). 

7.  Supplemental  affidavits  were  not  allowed  in  the 


MOTIONS  AND  RULES  AT  COMMON  LAW.  m 

early  practice,  it  being  thought  an  unfair  advantage,  and 
perhaps  an  undue  inducement  to  perjury,  to  tell  the  de- 
fendant what  to  swear  to  and  then  give  him  an  oppor- 
tunity to  bring  his  conscience  up  to  it.  It  frequently 
happens,  however,  that  points  arise  on  the  argument 
which  had  not  been  anticipated,  and  statements  which 
seemed  full  and  explicit  to  defendant  are  shewn  by  op- 
posite counsel  or  the  court  not  to  be  so  to  others  nol 
having  his  knowledge  of  the  facts.  Whenever  it  appears 
probable  in  such  cases  that  there  may  be  a  good  defence 
defectively  stated  (though  not  intentionally  i<>  delay  the 
cause),  the  court  usually,  as  a  matter  of  grace,  allows  a 
supplemental  affidavit,  and  the  practice  in  this  respect, 
as  already  said,  is  exceedingly  liberal. 

The  usual  purpose  of  giving  the  defendant  time  to 
file  a  supplemental  affidavit  is  of  course  to  remedy  de- 
fects pointed  out  in  the  original,  but  its  office  is  not 
confined  to  that,  and  defendant  may  set  up  an  entirely 
new  and  different  defence.  If  he  does  so  the  court  is 
bound  to  notice  it,  but  such  a  course  is  justly  open  t<»  sus- 
picion and  requires  a  strict  scrutiny  of  the  new  defence. 
('alien  v.  Lukens,  7  W.  N.  C.  28  (S.  ( \  L879). 

By  an  allowance  nothing  more  is  meant  than  that  the 
court  will  suspend  judgment  (usually  for  a  week),  in 
order  to  give  time  to  defendant  to  prepare  his  affidavit. 
A  supplemental  affidavit  may,  however,  be  filed  as  a 
matter  of  right,  without  obtaining  leave  of  the  court. 
at  any  time  before  judgment  is  actually  entered.  West 
v.  Simmons,  2  Wh.  261;  Bloomer  v.  Reed,  l'l!  Pa.  51 
(1853). 

The  court  may,  of  its  own  motion,  order  a  supplemental 
affidavit  of  defence.  Johnson  v.  Fenner,  1  W.  X.  C.  172 
(C\  P.  2,  1875).  /•:.  ff.,  where  it  sees  that  although  in- 
artistically  set  out  defendant  has  a  meritorious  defence. 
Boetner  v.  Stegmaier,  .'}  Kulp.  338  <  Luzerne,  L'885),  but 
in  Laird  x.  Campbell,92  Pa.  470,  (1880)  it  is  decided  th.it 


112  MOTIONS  AND  RULES  AT  COMMON  LAW. 

a  court  while  it  has  power  to  allow  or  even  order  the  mak- 
ing- of  a  supplemental  affidavit  of  defence  it  is  without 
power  to  enforce  the  order.  It  is  an  open  question 
whether  our  courts,  in  the  earnest  desire  to  execute  sub- 
stantial justice,  do  not  foster  carelessness  among  the  bar, 
by  almost  invariably  allowing  defendants  a  supple- 
mental affidavit,  where  the  first  one  is  such  as  to  entitle 
plaintiff  to  judgment  for  its  insufficiency.  At  the  argu- 
ment on  the  rule  for  judgment  for  want  of  sufficiency  of 
his  affidavit  of  defence,  defendant  can  see  just  wherein 
his  affidavit  is  wanting,  and  it  does  not  require  much 
coaxing  to  fetch  the  average  conscience  up  to  making 
the  affidavit  necessary  to  delay  the  case  to  a  jury  trial. 

Where  time  for  a  supplemental  affidavit  has  been  al- 
lowed by  the  court  but  none  has  been  filed,  judgment  for 
insufficiency  of  the  first  affidavit  is  not  of  course,  but 
must  be  moved  for.  Conrad  v.  Rogers,  3  W.  N.  C.  157 
(C.  P.  4,  1876).  The  case  having  been  partly  argued  is 
not  transferred  by  the  court  clerk  to  the  next  list,  but 
may  be  called  up  on  any  regular  list  on  forty-eight  hours' 
notice  to  the  opposite  counsel,  and  the  court  then  re- 
examine the  original  affidavit  on  paper  books,  as  in  the 
first  instance.  But  when  the  court  has  not  specified  the 
time  for  filing  a  supplemental  affidavit  the  delay  must 
not  be  unreasonable:  Close  v.  Hancock,  3  Pa.  Super.  Ct. 
207  (1896). 

Where  a  supplemental  affidavit  has  been  filed,  and 
plaintiff's  counsel  deems  it  still  insufficient,  the  same 
course  is  to  be  pursued  of  bringing  the  case  up  on  call. 
The  paper  books  in  such  case  should  contain  both  the 
original  and  the  supplemental  affidavits. 

Just  what  the  scope  a  supplemental  affidavit  of  de- 
fence may  take  is  not  susceptible  of  adequate  discussion 
here,  but  the  Supreme  court  held  in  Callan  v.  Lukens,  89 
Pa.  131  (1879),  that  it  may  set  out  an  entirely  new  or  at 
least  a  different  defence  from  that  set  up  in  the  original. 


MOTIONS  AND  RULES  AT  COMMON  LAW.  H3 

See  also  Slag  Works  v.  Krause,  .">  Pa.  Super.  Court,  622 
(1897).  An  important  effect  of  a  supplemental  affidavit 
of  defence  is,  that  if  it  be  riled  after  issue  joined,  plaintiff 
may  not  take  a  rule  for  judgment  for  its  insufficiency. 
Hoke  v.  Martin.  7  York,  Leg.  Record,  »•..">  I  York,  1893). 

As  has  been  stated,  if  plaintiff  lias  properly  served  his 
copy  of  statement  and  rule  to  rile  affidavit  of  defence 
sixteen  days  after — or  rather  fifteen  entire  days  having 
elapsed — lie  may  on  motion  in  the  prothonotary's  office 
take  judgment  by  default.  But  in  eases  where  no  a  Hi- 
davit  of  defence  is  required — e.  g.}  suit  on  official  bonds 
— if  an  affidavit  be  filed  judgment  cannot  be  had  for 
want  of  its  sufficiency.  Bartoe  v.  Guckcrt,  158  Pa.  124 
(1893). 
8 


114  MOTIONS  AND  RULES  AT  COMMON  LAW. 


X. 


Rules  for  judgment  for  want  of  an  affidavit  or  sufficient  affi- 
davit of  defence. 

And  this  leads  us  to  a  necessarily  brief  discussion  of 
the  rule  to  show  cause  why  judgment  should  not  be 
entered  against  defendant  for  want  of  a  sufficient  affi- 
davit of  defence. 

This  rule  occupies  more  space  in  the  lists,  is  more 
important  in  its  results  and  raises  more  questions  of 
law  for  argument  than  any  other  rule  in  our  present 
practice.  But  it  is  not  feasible  in  this  work  to  do  more 
than  to  touch,  in  a  general  way  upon  the  leading  points 
of  practice  in  regard  to  it,  especially  such  as  are  not 
easily  accessible  in  the  books  at  the  present  time. 


Judgments  for  want  of  an  affidavit  of  defence  origi 
nated  in  an  agreement  of  the  Philadelphia  Bar  entered 
into  on  September  11th,  1795.  (See  note,  which  con- 
tains a  copy  of  the  document  itself,  by  Judge  Carr  to  the 
report  of  the  cases  of  Detmold  et.  al.  v.  Gate  Vein  Coal 
Co.  and  Same  v.  Fisher,  3  W.  N.  C.  567  (U.  S.  D.  C.  E.  D. 
of  Pa.  1876).  They  were  soon  after  authorized  by  the 
rules  of  the  Philadelphia  County  courts  and  subse- 
quently having  received  legislative  sanction  in  the  acts 
relating  to  the  District  Court,  eventually  became  uni- 


MOTIONS  AND  RULES  AT  COMMON  LAW.  j  j ;, 

versal  throughout  the  commonwealth.  In  the  early 
stages  of  the  growth  of  the  practice  there  was  much 
diversity  of  opinion  in  the  Supreme  Courl  arising,  of 
course,  from  the  fact  thai  many  <»f  the  Justices  of  that 
Court  were  not  accustomed  to  the  practice,  bul  even 
though  there  was  much  reluctance  to  adopt  it  on  the 
part  of  some  of  the  members  <>f  the  court,  the  general 
trenced  of  sentiment  was  favorable  to  it.  Take  as  an  in- 
stance the  final  paragraph  in  Mr.  Justice  Cordon's 
opinion  in  the  case  of  Bardsley  v.  I><  Ip,  ss  Pa.  -li'O 
(1879),  (a  writ  of  error  to  the  Court  of  Common  Pleas 
No.  1  of  Philadelphia)  which  reads:  "  If,  indeed,  the  de- 
fendant, by  this  ambiguous  wording  meant  that  the 
plaintiff  had  taken  it  as  collateral  security  for  a  pre- 
existing debt,  he  should  have  said  so.  If  he  has  qoI  been 
able  to  make  out  a  prima  facie  case  for  himself,  we  can- 
not help  him  by  inferences  drawn  from  obscure  language 
which  he  bw  a  word  or  two  might  have  made  plain.  If 
a  defendant,  when  he  has  the  stand  to  himself,  cannot 
make  out  a  case  in  his  own  favor,  it  must  be  because  he 
has  none,  and  he  ought  not  to  ask  a  court  to  patch  up  a 
case  for  him." 

This  embodies  the  true  rule  upon  which  the  courts 
have  settled.  The  difference  between  skilful  evasion 
and  mere  inadvertence  or  failure  to  foresee  the  precise 
point  of  objection,  is  not  always  easy  to  determine,  but 
it  is  always  less  difficult  in  the  court  of  first  instance 
which  has  the  materials  before  it  in  a  plastie  state,  than 
afterwards  when  they  have  hardened  into  judgment,  and 
are  brought  forward  as  an  exhibit  in  print.  There  is 
seldom  an  instance  where  counsel,  who  is  met  with  a 
really  unexpected  objection  to  his  affidavit,  and  has  been 
willing  to  state  that  he  is  un-insl ructed,  or  even  that  he 
has  reason  to  believe  that  he  can  remedy  the  defect,  has 
been  refused  an  opportunity  of  doing  so  by  a  supplemen- 
tal affidavit.     Where,  therefore,  the  defendant  has  had  a 


116  MOTIONS  AND  RULES  AT  COMMON  LAW. 

second  opportunity,  with  the  deficiency  pointed  out  to 
him,  and  fails  to  make  a  satisfactory  defence,  we  may 
well  conclude  in  the  words  of  Justice  Gordon,  that  "  it 
must  be  because  he  has  none; "  and  in  the  present  prac- 
tice of  this  country,  where  no  leave  for  a  supplemental 
affidavit  has  been  granted,  it  may  safely  be  assumed  that 
it  was  because  counsel  have  not  been  willing  to  say  that 
they  could  essentially  fortify  the  affidavit  already  filed.86 
Plaintiff  must  avail  himself  of  his  right  to  this  rule 
promptly  and  before  he  takes  any  step  in  the  case  other- 
wise he  will  be  taken  to  have  waived  his  rights.  O'Neal 
v.  Rupp,  22  Pa.  395  (1853).  But  unless  the  statement 
of  claim  is  complete,  accurate  and  precise,  judgment  will 
not  be  rendered  for  the  insufficiency  of  the  affidavit 
of  defence,  if  for  example  the  action  is  in  quantum 
meruit  and  there  is  no  averment  that  the  price  sued  for 
is  fair,  or  usual  or  that  the  value  of  the  services  for 
which  recovery  is  sought  is  of  the  ordinary  standard,  the 
case  must  go  to  the  jury  :  Murphy  v.  Taj/lor,  173  Pa. 
317  (189G)  :  see  also  the  opinion  of  Mr.  Chief  Justice 
Sterrett  in  Byrne  v.  Hayden,  124  Pa.  171  (1889). 


MOTIONS  AND  RULES  AT  COMMON  LAW.  iy 


XL 

Rule  for  judgment  for  part  of  claim. 

The  Act  of  May  31,  1893,  P.  L.  185,  permits  plaint  ill* 
"  to  take  judgment"  for  the  part  of  his  claim  to  which 
defendant  has  not  filed  an  affidavit  of  defence,  the  act 
does  not  specify  how  the  part  judgment  shall  be  taken. 
In  this  county  the  practice  is  to  take  a  rule  to  show 
cause  why  judgment  should  not  be  entered  for  Plaintiff 
for  the  amount  admitted  to  be  due.  It  is  the  practice 
elsewhere  to  take  the  judgment  in  the  Prothonotary's 
office. 

The  Act  has  been  held  to  apply  only  to  cases  where  I  he 
defendants  specifically  admits  a  certain  amount  due,  or 
at  all  events  makes  such  admission  that  the  amount  tan 
be  readily  liquidated,  irrespective  of  contents  as  to  par- 
ticular items  of  an  account  which  are  in  dispute.  Den,- 
sem  et  a!,  v.  Keily,  3  I).  R.  339  (C.  P.  2, 1894  )  ;  Scranton 
v.  Hall,  3  Lack.  L.  X.  99  (189G).  Under  this  Act  plain- 
tiff may  have  judgment  upon  that  pari  of  an  affidavil  of 
defence  which  is  insufficient, and  proceed  as  to  that  part 
of  his  claim  to  which  it  is  adequate  to  prevenl  judgment 
Cobom  v.  Reynolds,  14  Pa.  C.  C.  157  (Warren,  L894). 
But  it  is  doubtful  whether  Plaintiff  could  prevail  in  a 
rule  to  withdraw  from  his  statement  a  part  of  his  claim, 
without  prejudice  t«>  proceed  for  the  balance  Hill  v. 
Ritter,9W.  N.  C.  574  (C.  P.  3,  1880).  Unless  the  state- 
ment consists  of  severable  claims.  Richard*  v.  Bieler, 
3  W.  N.  C.  485  (S.  C.  1S77). 


113  MOTIONS  AND  RULES  AT  COMMON  LAW. 


XII. 

Rules  to  open  or  to  strike  off  judgment. 

The  rule  to  open  judgment  and  let  defendant  into  a 
defence  is  peculiar  to  Pennsylvania  practice,  and  is  a 
clear  example  of  our  system  of  administering  equity 
under  common-law  forms. 

By  long  practice  and  common  understanding  it  is  con- 
fined to  judgments  by  default,  and  those  entered  on  war- 
rants of  attorney  to  confess,  etc.  It  was,  however,  in- 
vented in  the  absence  of  a  court  of  chancery,  as  a  substi- 
tute for  a  bill  in  equity  to  enjoin  proceedings  at  law,  and 
in  Cochran  v.  Eldridge,  49  Pa.  365  (1865)  (in  which  a 
judgment  upon  an  award  of  arbitrators,  in  an  adverse 
proceeding,  was  opened),  Chief  Justice  Woodward,  re- 
capitulating the  famous  contest  between  Coke  and  Lord 
Ellesmere,  asserted  in  explicit  terms  the  right  of  the 
courts  of  Pennsylvania  to  exercise  in  this  form  all  the 
powers  of  a  court  of  chancery  to  relieve  against  judg- 
ments obtained  by  fraud.  And  see  Dorney  v.  Mertz,  8 
Phila.  553  (C.  P.  Lehigh  Co.  1871).  Notwithstanding  this 
decision,  however,  it  has  not  been  usual  to  exercise  equit- 
able jurisdiction  in  this  form,  except  as  already  stated 
over  judgments  by  default,  or  by  confession  on  warrant 
of  attorney,  and  it  is  not  likely  that  a  more  extended 
practice  would  be  encouraged  since  the  grant  of  equity 
powers,  which  are  ample  and  afford  some  facilities  for 
the  protection  of  the  rights  of  parties  which  the  common- 
law  procedure  does  not,  and  especially  since  it  has  been 
held  that  an  application  to  the  court  to  open  a  judgment 


MOTIONS  AXD  RULES  AT  COMMON  LAW.  UQ 

is  not  a  bar  to  a  subsequent  bill  in  equity  for  the  same  re- 
lief.    Wistar  v.  McManes,  54  Pa.  327  i  lsr,7).ST 

When  the  application  is  addressed  to  the  equitable 
power  of  the  Court  to  permit  a  defence  to  a  judgment 
regular  on  its  face,  the  proper  remedy  is  to  open.  .1/  UU  r 
V.  Glass  Works,  172  Pa.  70,  (IS!)."))  i  bul  as  this  admits 
the  validity  of  the  judgment  and  if  this  is  to  be  attacked 
the  rule  should  be  to  vacate  or  set  aside  the  judgment. 
H  uber  v.  dross  wan,  14  W.  X.  C.  157  (C.  P.  1,  1883).  It 
seems  that  the  Common  Pleas  has  no  power  to  open  a 
judgment  entered  on  the  transcript  of  a  .Magistrate,  but 
may  stay  execution  of  it.  Singer  v.  Singer  Co.,  '2  Pa.  C. 
C.  578  (Carbon,  1886). 

A  judgment  entered  on  a  verdict  after  a  trial  or  upon 
a  hearing,  e.  g.}  for  want  of  a  sufficient  affidavit  of  de- 
fence, cannot  be  opened  after  the  term  at  which  it  is  en- 
tered. Hill  v.  Egan,  2  Pa.  Super.  Ct.  500  (1800).  But 
there  is  no  limit  of  time  within  which  a  judgment  by 
default  can  be  opened,  except,  that  here  as  well  as  in 
other  cases  of  equitable  relief  delay  amounting  to  laches 
will  bar  the  party  applying.  Vanline  v.  Finney,  1  W. 
N.  C.  8  (D.  C.  1875)  ;  Citizen's  Trust  Co.  v.  Goodchild, 
195  Pa.  80  (1900). 

There  is  no  authority  for  opening  a  judgment  of  non- 
suit; Liebrccht  v.  Insurance  Co.,  1  W.  X.  0.  $4  (Phila. 
1875).  It  must  be  remembered  thai  when  the  rule  is  al- 
lowed or  if  it  be  made  absolute  that   the  court   will  make 


87  The  opening  or  refusing  to  open  a  judgment  being  matter 
of  discretion,  lias  been  held  not  to  be  reviewable  on  writ  of  error 
(except  in  cases  of  excess  of  authority;  Huston  v.  Mitchell,  11 
S.  &  R.  310;  Catlin  v.  Robinson,  2  Watts.  :;;:•>).  Inn  do*  bj  the 
act  of  4th  April,  1877  the  unsuccessful  party  may  appeal.  The 
effect  of  this  statutory  extension  of  (lie  remedy  by  rule,  on  the 
question  of  barring  a  subsequent  hill  in  equity  for  the  same 
matter,  ami  consequently  on  the  practice,  cannot,  perhaps,  be 
safely  predicted. 


120  MOTIONS  AND  RULES  AT  COMMON  LAW. 

some  order  in  protection  of  intervening  rights  ;  Kalbach 
V.  Fisher,  1  Kawle,  323.  Indeed  the  rights  of  third 
parties  will  be  considered  in  disposing  of  a  rule  to  open 
judgment;  Vandcrpocl  v.  Vanderpocl,  162  Pa.  394 
(1894). 

The  rule  may  be  made  absolute  on  terms,  and  where 
execution  has  been  issued,  it  is  usual  for  the  court  to 
make  some  order  respecting  it.  Unless  so  ordered,  the 
rule  does  not  of  itself  stay  proceedings  ;  Spang  v.  Com- 
monwealth, 2  J.  358  (1850). 

The  grounds  upon  which  the  rule  is  founded  are,  of 
course,  as  varied  as  those  of  bills  in  equity,  and  as  in 
equity,  each  case  must  stand  upon  its  own  peculiar 
merits.  A  discussion  of  even  the  principal  and  most 
frequently-occurring  cases  would  extend  this  treatise 
far  beyond  its  limits,  and  they  must  be  passed  by  with 
the  remark,  that  in  general  the  application  is  based  on 
fraud,  imposition,  or  mistake,  in  the  execution  of  the  in- 
strument on  which  judgment  is  entered;  failure  of  the 
consideration  for  which  such  instrument  was  given; 
wrongful  use  of  the  judgment  where  it  was  intended  for 
security  only;  and  in  cases  of  judgments  by  default,  ac- 
cident, ignorance,  or  other  unavoidable  cause  by  which 
a  meritorious  defence  has  failed  to  be  presented  in 
proper  time.  The  rules  which,  next  to  those  just  dis- 
cussed, occupy  the  most  space  in  the  lists  and  whose  im- 
portance therefore  require  some  special,  though  neces- 
sarily brief  mention,  are  those  to  open  and  strike  off,  or, 
as  it  is  sometimes  expressed,  to  set  aside  or  vacate,  judg- 
ment. 


MOTIONS  AND  RULES  AT  COMMON  LAW.  121 


Rules  to  open  or  to  strike  off  judgment. 

1.  These  two  rules  are  usually  treated  together,  and 
indeed  they  are  used  and  spoken  of  in  the  reported  de- 
eisions  interchangeably,  with  hopeless  confusion.  Bui 
there  is  a  wide  and  fundamental  difference  between 
them,  which  is  thus  tersely  and  authoritatively  expressed 
in  a  very  recent  case  by  Chief  Justice  Sharswood  :  "  A 
motion  to  set  aside  or  strike  off  a  judgment  must  be  on 
the  ground  of  irregularity  appearing  on  the  face  of  the 
record;  a  motion  to  open  it  is  an  appeal  to  the  equitable 
power  of  the  court  to  let  the  defendant  into  a  defence." 
O'Hara  v.  Baum,  82  Pa.  41G  (1876). 

2.  This  distinction  had  previously  been  pointed  out 
more  or  less  clearly  (especially  by  the  same  learned 
judge  while  President  of  the  District  Court.  D<  vereux 
V.  Roper,  1  Tr.  &  Haly,  GG2  n. ;  and  by  Judge  Hare  in  the 
same  court  ;  Dc  Crano  v.  Musselman,  7  Phila.  211  (  I). 
C.  1870)  ;  and  see  Homer  v.  Horner,  3!>  Pa.  126  1 1S61  i  ; 
Humphreys  v.  Rairn,  8  W.  78)  ;  but,  as  already  said,  the 
cases  have  treated  the  two  rules  as  if  they  were  the  same. 
A  notable  instance  is  to  be  found  in  Knox  v.  Flack,  22 
Pa.  337  (1853),  where  the  Supreme  Court  reversed  a 
perfectly  regular  judgment  because  the  courl  below  had 
discharged  a  rule  to  strike  it  off  on  the  ground  of  <h~ 
fendant's  infancy  when  the  bond  and  warrant  were  ex- 
ecuted, a  fact  which  was  not  on  the  record,  and  could  nol 
be  got  on  it,  except,  as  stated  by  Lowrie,  J.,  in  the 
opinion,  that  it  was  <i<luiitte<!  in  the  paper  book.  The 
same  judge,  in  Banning  v.  rr<ii/l<>r.  21  Pa.  295  i  1854), 
(a  case  on  the  border  line),  delivered  a  dissenting  opin« 


122  MOTIONS  AND  RULES  AT  COMMON  LAW. 

ion,  in  which  the  true  principles  are  clearly  and  most 
forcibly  stated,  and  yet  in  Hutchinson  v.  Ledlie,  36  Pa. 
113  (1860),  he  summarily  took  it  all  back,  and  referred 
to  the  opinion  from  which  he  had  dissented,  as  showing 
"  convincingly  "  that  courts  have  power  to  set  aside  judg- 
ments "  for  causes  appearing  on  the  record,  and  also  for 
causes  that  may  be  made  to  appear  by  evidence."  In 
that  case,  however,  judgment  had  been  entered  on  a  bond 
and  warrant  given  in  the  firm  name  by  one  partner  only. 
The  irregularity,  therefore,  appeared  on  the  record,  and 
the  case  was  rightly  decided.  It  is  referred  to  only  to 
show  the  confusion  in  the  language  used  by  an  eminent 
judge  to  whom  the  true  principles  were  undoubtedly 
familiar.  In  Knox  v.  Flack  the  fact  of  infancy  was  un- 
disputed, and  the  judgment  was  therefore  void,  and  the 
difference  in  the  form  by  which  it  was  got  rid  of,  whether 
summarily  struck  off  by  the  court,  or  opened  and  a  ver- 
diet  rendered  for  defendant,  was  practically  unimport- 
ant, and  the  distinction  was  not  present  in  the  mind  of 
the  court  when  expressing  its  decision.  The  same  may  be 
said  of  Martin  v.  Rex,  6  S.  &  K.  296,  where  a  judgment 
was  struck  off  because  the  warrant  on  which  it  was  en- 
tered had  previously  been  exhausted  by  the  entry  of 
judgment  on  it  in  another  county;  of  Gordon  v.  Bartley, 
4  W.  N.  C.  37  (C.  P.  1, 1877),  where  it  was  admitted  that 
defendant  was  dead  at  the  time  of  entry  of  judgment; 
and  perhaps  of  other  cases  that  appear  to  be  in  contra- 
vention of  the  rule.  Had  the  facts  in  any  of  these  cases 
been  disputed,  the  form  of  the  rule  would  have  become 
material,  and  there  is  no  doubt  the  courts  would  have 
observed  the  proper  distinctions. 

Whether  or  not,  however,  all  the  cases  can  be  recon- 
ciled with  it,  the  rule  as  stated  by  Chief  Justice  Shars- 
wood  in  O'Hara  v.  Baum,  above  quoted,  is  the  true  and 
settled  rule,  and  will  always  be  enforced  when  the  at- 
tention of  the  court  is  directed  to  it. 


MOTIONS  AND  RULES  AT  COMMON  LAW.  lL>3 

II. 

To  strike  off. 

3.  The  rule  to  strike  off  judgment  is  essentially  a 
common-law  proceeding,  a  short  and  summary  substi- 
tute for  an  audita  querela,  a  writ  of  error  coram  vobis, 
or  a  certiorari  or  writ  of  error  from  a  superior  court,  by 
which  the  same  relief  was  formerly  administered.  It 
cannot  be  combined  with  an  order  to  open  the  judgment 
Reynolds  v.  Supreme  Conclave,  i)  D.  R.  022  (  Lancaster, 
1900). 

4.  Being  for  irregularity  apparent  on  the  face  of  the 
proceedings,  it  is  in  the  nature  of  a  demurrer  to  the 
record,  and  is  not  confined  to  any  particular  kind  of 
judgments,  nor  limited  as  to  the  time  it  may  be  taken 
advantage  of,  nor  affected  by  matters  dehors-  the  record, 
except  so  far  as  defendant  may  have  put  himself  in  posi- 
tion to  be  estopped  from  making  the  objection.  Exam- 
ples of  its  appropriate  use  may  be  found  in  Scott  v.  Wil- 
mer,  1  W.  N.  C.  41  (D.  C.  1874)  ;  Scott  v.  Loin/Inn/.  ('» 
W.  N.  C.  123  (C.  P.  1,  1878),  and  Stadelman  v.  Penna. 
Co.,  Id.  134,  where  judgments  had  been  improvidently 
entered  for  want  of  affidavits  of  defence,  in  cases  not 
within  the  law;  in  Tobias  v.  Dorse,/.  2  W.  X.  C.  L5  (C. 
P.  2,  1875),  where  the  record  showed  on  plaintiff's  sug- 
gestion, that  defendant  was  dead  at  the  time  judgment 
was  entered;  and  in  Rothenhausler  v.  Rotherikausler,  »> 
W.  N.  C.  560  (C.  P.  2,  1879),  where  the  record  showed 
a  judgment  entered  by  default  while  an  order  slaying 
proceedings  was  still  in  force. 

It  is  to  be  noted  that  the  reversal  of  an  order  of  the 
Common  Pleas  striking  off  a  judgment  is  not  res  ad ju- 
dicata as  to  subsequent  proceedings  in  the  lower  court 

to  open   the  judgment    and    let    the  defendant    into  a  de- 


124  MOTIONS  AND  RULES  AT  COMMON  LAW. 

fence  on  the  merits  ;   American  Mfg.  Co.  v.  Smith  Co.r 
28  Pa.  Super.  Ct.  124  (1905). 

5.  As  already  said,  this  rule  occupies  a  very  large 
portion  of  the  time  of  the  courts  on  motion  days. 
"  Final  judgments,"  says  Blackstone,  "  are  such  as  at 
once  put  an  end  to  the  action  by  declaring  that  the  plain- 
tiff has  either  entitled  himself  or  has  not,  to  recover  the 
remedy  he  sues  for."  Doubtless  if  the  learned  commen- 
tator were  to  spend  a  few  Motion  or  Argument  list  days 
in  our  courts,  he  would  be  apt  to  think  that  by  some 
strange  perversion,  judgments  had  come  to  be  only  the 
beginning  of  most  actions.  The  practice  of  this  county 
in  this  respect  is  extremely  liberal,  not  to  say  loose,  and 
has  been  frequently  expressed  as  rule  absolute  whenever 
the  defendant  makes  out  a  fair  conflict  of  evidence  for  a 
jury.  This  rule,  eminently  proper  for  cases  of  default, 
promptly  and  fully  excused,  has,  been  pushed  to  such  ex- 
tent in  other  cases,  especially  since  the  acts  allowing 
parties  to  testify,  as  to  have  become  a  positive  abuse.  A 
defendant  who  has  only  enough  evidence  to  produce  a 
fair  conflict,  ought  not  to  prevail  against  a  plaintiff  who 
has  also  evidence  amounting  to  a  fair  conflict  plus  the 
written  instrument.  The  tendency  of  Pennsylvania  law 
to  reduce  the  rank  of  written  evidence  by  allowing  it  to 
be  freely  contradicted  (a  tendency  perhaps  unavoidable 
in  the  absence  of  a  court  of  chancery),  is  in  danger  of 
running  wild,  and  should  be  stayed.  The  reason  for  its 
introduction  no  longer  exists,  and  since  parties  have 
been  made  witnesses,  its  dangers  have  been  increased 
many  fold.  The  true  rule,  to  which  the  courts  must 
ultimately  come,  is  that  the  defendant  should  show 
such  a  predonderance  of  evidence  that  a  jury  ought, 
and  probably  would,  find  in  his  favor.  See  the  opinion 
of  Dana,  J.,  in  Philbin  v.  Davinger,  29  Leg.  Int.  325, 
and  that  of  Meyers,  P.  J.,  in  Wilson  v.  Leinbach,  6 


MOTIONS  AND  RULES  AT  COMMON  LAW.  J05 

6  W.  N.  C.  483  (Northampton,  1879);  Early's  Ap- 
peal and  Hockernell  v.  Fleckenger,  7  \Y.  X.  C.  515  (S. 
C.  1879)  ;  Knarr  v.  Efgrrew,  19  \Y.  X.  C.  531  (S.  C.  iss;  >  ; 
Jenkintoum  Bank  v.  Fulmer,  124  Pa.  337   (1889). 

It  hardly  need  to  be  said  that  in  the  striking  off  a  judg- 
ment only  defendant  can  have  the  rule,  and  in  opening 
while  this  is  not  always  so,  yet  the  petition  for  the  rule 
must  be  very  specific  in  the  allegations  of  interest  of  the 
party  asking  for  the  rule  or,  rather,  as  it  is  said  in 
Creighton  v.  Scranton  M'fg  Co.,  191  Pa.  231  (1899) 
■"  the  averments  *  *  *  must  establish  a  prima  fade  case 
for  the  relief  asked:"  see  also,  Cutler  v.  Magraw,  10  I>. 
R.  146  (Crawford,  1900).  A  mortagee  or  a  plaintiff  in 
execution  who  purchases  the  land  levied  on  and  sold  un- 
der their  judgments  having  purchased  the  same  at  the 
sheriff's  sale  at  a  price  less  than  that  which  satisfy  their 
claims,  may  attack  any  judgment  undischarged  by  the 
sale  if  the  defence  set  forth  in  the  petition  for  the  rule 
to  open  a  judgment  and  to  intervene  is  meritorious. 
And  note  that,  even  as  to  a  judgment  entered  by  default 
on  a  record  faulty  on  the  face  the  rule  of  a  stranger  must 
be  to  open  and  to  intervene.  Although  junior  judg- 
ment creditors  have  no  standing  to  have  a  judgment 
opened  of  prior  lien  to  them,  Forbes  v.  Adams,  17 
Phila.  222  (C.  P.  3.  1885)  ;  an  allegation  of  fraud  in 
the  petition  for  the  rule  will  cause  the  court  at  least  to 
entertain  the  application  ;  Campbell  v.  Kent,  A  P.  &  W. 
72;  Lewis  v.  Rogers,  1G  Pa.  18  ( 1851  )  ;  Clark  v.  Douglas, 
G2  Pa.  408  (18(59).  A  rule  to  open  will  not  be  granted 
when  the  gist  of  the  defence  is  the  statute  of  limitations; 
Woods  v.  Inrin,  141  Pa.  27s  (1891),  the  application 
being  to  the  equitable  power  of  the  court  it  must  show  a 
meritorious  claim  not  a  technical  defence  especially  BO 
if  the  defendant  has  had  his  opportunity  to  offer  that 
defence. 

The  most,  numerous  instances  of  the  rules   will   be 


Ijij  MOIIONS  AND  RULES  AT  COMMON  LAW. 

found  in  judgments  entered  by  virtue  of  warrant  of  at- 
torney and  it  may  be  said,  that  the  courts  are  well  dis- 
posed towards  applications  in  these  cases;  the  defence  to 
such  judgments  nearly  always  bear  the  features  of  injury 
done.  In  Muller  v.  Schenck,  94  Pa.  37  (1880),  a  judg- 
ment was  entered  by  virtue  of  a  warrant  of  attorney  at- 
tached to  a  promissory  note,  known  as  a  "judgment 
note,"  to  stay  an  impending  execution  defendant  exe- 
cuted and  delivered  plaintiff's  other  notes  of  similar 
form,  upon  which  judgment  was  entered;  defendant 
sought  relief  from  the  later  judgments  on  the  ground  of 
fraud  in  the  first,  but  his  rules  could  not  be  made  abso- 
lute because,  by  giving  them  he  was  estopped  from  de- 
fending against  the  first.  His  right  course  would  have 
been  to  ask  for  a  rule  to  open  the  first  judgment  to  make 
the  defence  and  for  a  stay  of,  or  to  set  aside  the  pending 
fieri  facias. 

A  judgment  confessed  on  a  warrant  of  attorney  in- 
corporated in  a  form  of  lease  which  stipulates  that  the 
lessee  will  not  apply  for  an  opening  of  a  judgment  if  en- 
tered, cannot  be  opened  at  the  instance  of  a  sub-tenant, 
because  he  is  bound  by  the  covenants  of  his  lessor  in  the 
lease  under  which  he  claims  ;  Gucnthcr  v.  Gilchrist,  28 
Pa.  Super.  Ct.  232  (1905) .  It  is  a  matter  of  importance 
that  the  rule  taken  should  be  appropriate  in  form  to  se- 
cure the  relief  asked.  A  rule  involving  a  defence  on  the 
merits  should  be  to  open,  not  to  strike  off  and  yet,  in  a 
recent  case  a  judgment  was  entered  on  a  warrant  to  con- 
fess, to  which  the  defence  was,  that  an  essential  condition 
of  the  right  to  exercise  the  warrant  was  unfulfilled,  a 
condition  which  could  not  possibly  appear  on  the  face  of 
the  record  and,  even  if  it  did,  was  in  no  sense  a  legal  ir- 
regularity, we  find  this  essential  difference  overlooked  by 
the  lower  court  and  waived  by  the  appellate  tribunal 
both  of  which  decided  the  case  on  its  merits,  rightly  as 
far  as  the  result  was  concerned,  for  the  rule  was  dis- 


MOTIONS  AND  RULES  AT  COMMON  LAW.  [27 

charged;  Singer  v.  sheriff  et.  al.}  28  I'a.  Suiter.  Ct.  305 
(1905). 

The  validity  of  a  judgment  may  not  be  assailed  on  a 
rule  to  stay  a  /?en  facias  unless  the  prayer  to  open  be  a 
part  of  the  rule.  Anderson  v.  Wordsworth,  1  Lack.  L. 
N.  264. 

A  rule  to  open  judgment  may  be  made  absolute  as  i<> 
part  and  discharged  as  to  part.  Ansley  v.  Ami .  :\  Kulp, 
152  (Luz.  1881). 

As  to  the  time  within  which  a  rule  to  open  should  be 
asked,  it  seems  that  there  is  no  lapse  of  time  to  the  ex- 
ercise of  the  power  of  the  court  over  judgments  entered 
by  default  or  confession.  King  v.  Brooks,  72  Pa.  3<*>3 
(1872). 


128  MOTIONS  AND  RULES  AT  COMMON  LAW. 


XIII. 
Rules  relating  to  Mechanics' Liens  and  Municipal  Claims. 

1.  Mechanics'  Liens  and  Municipal  claims  are  estab- 
lished in  our  system  of  jurisprudence  by  what  may  fitly 
be  called  artificial  and  unnecessary  legislation.  With 
regard  to  the  former  the  report  of  the  Committee  on  Law 
Reform  of  the  Bar  Association,  (Fifth  Annual  re- 
port of  the  Pennsylvania  Bar  Association  p.  27)  gives 
as  the  judgment  of  the  Committee  that  the  ends  of  jus- 
tice would  best  be  served  by  a  repeal  of  all  laws  relating 
to  Mechanics'  Liens.  The  legislation  in  respect  to  Me- 
chanics' Liens  at  present  is  a  development  of  the  Com- 
mon Law  right  of  an  artisan  or  mechanic  to  a  lien  on 
his  work  for  compensation,  this  right  existed  in  all  kinds 
of  handicraft  and  was  enforced  by  possession  or  if  this 
which  were  delivered  to  him  at  whose  instance  it  was 
fashioned  before  payment,  an  action  of  trover  would  lie 
for  its  return  as  well  as  debt  to  recover  its  value.  Prob- 
ably because  in  most  instances  the  articles  made  were  for 
use  in  the  construction  of  dwellings  or  places  where 
business  was  conducted,  and  were  furnished  in  their  con- 
struction, that  the  lien  followed  the  article  into  its  place. 
Thus  the  lien  was  extended  to  the  whole  building,  and 
was  given  a  tangible  form  in  the  way  of  recording  or  fil- 
ing it  in  the  court  office  and  the  law  was  formulated  so 
that  we  find  tradesmen  whose  calling  was  in  furnishing 
items  in  the  sum  of  building  are  protected,  while  none 
others,  not  even  those  who  work  up  the  raw  material  that 
goes  into  such  constructions  are.    The  exact  reason  for 


MOTIONS  AND  RULES  AT  COMMON  LAW.  109 

this  favoritism  is  difficult  to  sec,  the  more  so,  because  in 
the  course  of  trade  development,  we  find  corporations, 
and  limited  partnerships,  having  for  their  object  the  man- 
ufacture of  house  building  material  enjoying  the  fruit  of 
the  application  of  a  principle  established  and  pursued 
for  the  benefit  of  individual  mechanics  dependent  on 
their  hands  for  their  daily  life. 

2.  It  does  not  require  extended  argument  to  prove  the 
righteousness  of  the  opinion  of  the  Pennsylvania  Bar 
Association  as  to  the  advisability  of  repealing  Mechanic's 
Lien  laws.  It  is  a  species  of  class  legislation  and  mighl 
he  reasonably  attacked  on  that  ground,  but  having  run 
the  gamut  of  nearly  a  hundred  years  we  must  ac- 
quiesce in  the  judgment  of  the  Law  Reform  Committee 
that  it  has  "come  to  stay.'"  But  it  is  not  too  much  to 
hope  that  the  century  of  experience  with  this  most  par- 
ticular of  "  special  Legislation  " — some  sixty  acts  of  as- 
sembly being  found  necessary  to  give  the  principle  po- 
tency— may  not  far  off  lead  to  its  being  legislated  to  the 
"  scrap  basket." 

3.  It  may,  moreover  give  us  some  difficulty  to  explain 
why  this  legislation  does  not  come  under  the  consti- 
tutional inhibition,  expressed  in  Article  III.  sec.  7,  par- 
ticularly since  Judge  Sulzberger's  convincing  opinion 
in  Tennessee  Producers  Marble  Co.  v.  Grant  et  ah,  14 
I).  R.  453  (C.  P.  2,  1905),  where  he  held  that  the  sec- 
tion 28  of  the  Act  of  June  4,  1901,  (  Mechanic's  Liens  i 
was  unconstitutional  as  an  attempt  by  special  legislation 
to  provide  and  change  "the  method  of  collecting  debts." 

The  whole  statute  would  seem   to  be  open  to  the  same 

criticism.  It  offers  opportunity  for  merrimenl  to  ob- 
serve that  the  same  protection  which  was  afforded  by  the 
common  law  to  the  hard  working  blacksmith  or  stone- 
cutter for  the  return  of  his  labor,  has  been  extended  b.\ 
intricate  confusing  legislation  and  decisions  to  incor- 
porated manufacturers  and  "prosperous"  partnerships, 
9 


130  MOTIONS  AND  RULES  AT  COMMON  LAW. 

the  blacksmith  and  stonecutter,  and  all  other  trade  fol- 
lowers being  to  all  intents  and  purposes,  left  to  play 
with  the  shell  of  the  right  once  their  own. 

4.  Legislation  establishing  Mechanic's  Liens  in  our  juris- 
prudence began  with  the  act  of  April  16,  1803,  P.  L.  591, 
but  the  basic  law,  at  least  so  far  as  the  practice  is  con- 
cerned, is  the  Act  of  June  16,  1830,  P.  L.  695.  Chief 
Justice  Gibson's  opinions  in  Mclntyre  v.  Warner,  2  W. 
&  S.  392  (1811)  (the  first  case  in  the  books  which  treats 
of  the  subject)   is  interestingly  instructive. 

The  last  legislation  is  the  Act  of  June  4,  1901,  P.  L. 
431,  which  was  suggested  by  the  Pennsylvania  Bar  As- 
sociation at  its  Annual  meeting  in  1899;  {Vol.  v.  An- 
nual Reports  of  Pa.  Bar.  J_.s-.so.,)  and  passed  somewhat 
as  formulated  by  the  committee  of  Law  Reform  of  that 
body.  It  is  a  codification  of  the  laws  under  which  our 
practice  in  this  branch  of  the  profession  has  developed 
and  if  it  has  done  no  other  good  it  has  repealed  all  of 
the  heterogeneous  and  conflicting  laws  which  were  in 
force  up  to  the  time  of  its  approval. 

5.  Rules  arising  from  this  class  of  cases  are  for  the  most 
part  directed  against  some  technical  informality  or  fail- 
ure to  conform  to  the  requirements  for  being  purely 
statutory  compliance  with  statutory  requirements  is 
necessary  to  give  it  validity;  Knelly  v.  Hoicartli,  208 
Pa.  487,  (1904)  :  but  in  taking  such  rules,  which  may  be 
done  at  "  any  time,''  scan  sec.  59  of  the  act,  sec.  of  Act 
of  June  4,  1901,  P.  L.  431,  sec.  59  (Mechanic's  Liens). 

6.  A  lien  is  defective  on  its  face  when  it  fails  to  particu- 
larly set  out  the  contract  under  which  it  claims,  and 
quantity  of  articles  or  materials  furnish.  Howard  v. 
Allison,  12  D.  R.  117  (Venango,  1902).  This  defect  is 
doubtless  curable  by  amendment  but  where  the  notice  by 
a  subcontractor  to  the  owner  is  not  filed  within  three 
months  after  the  work  is  done  or  the  last  of  the  materials 
furnished  by  him  which  he  contracted  to  furnish  the 


MOTIONS  AND  RULES  AT  COMMON  LAW.  [3] 

chief  contractor  for  the  work  the  lien  is  fatally  bad. 
Stover  v.  Folz,  13  D.  R.  636  i  Franklin,  1  '.mm  i  ;  U  olf  Co. 
v.  /'.  R.  R.  Co.;  Collins  v.  Same,  [bid.  701  (C.  P.  L,  L904  |, 
For  the  failure  to  give  proper  preliminary  notice  can- 
not be  amended;  Think  v.  Evans,  211  Pa.  239;  see  also 
Lofink  v.  Schuette,  14  D.  R.  558  (C.  P.  Allegh.  L905).  A 
claim  is  also  fatally  had  when  the  extent  of  the  estate 
against  which  it  is  tiled  is  not  stated  as  required  by  sec- 
tion 11  of  the  act;  Maddocks  v.  Medium,  12  D.  R,  701 
(Lackawanna,  1902).  The  lien  is  had,  if  when  the  con- 
tract is  not  with  the  owner  or  not  for  an  agreed  sum 
a  copy  of  correspondence  developing  the  contract  is 
substituted  for  the  "  detailed  statement  of  the  kind 
and  character  of  the  labor  or  materials  furnished  " 
as  required  by  the  same  section  paragraph  0;  King  v. 
Church.  14  D.  K.  205  (C.  P.  3,  1905).  The  notice  re- 
quired l»y  section  21  to  be  given  by  a  contractor  to 
the  owner  after  he  has  tiled  a  lien,  applies  to  a  suh- 
contractor  and  the  claim  is  bad  without  this  appear- 
ing; Compton  v.  Sankey,  13  1).  R.  ~u>~>  (  Dauphin,  L903). 
In  the  matter  of  amendments  allowed  by  section  51,  it 
may  be  broadly  stated  the  amendments  contemplated  by 
the  section  are  those  as  to  form  of  the  lien,  and  they  may 
he  had  even  after  the  time  within  which  a  lien  may  be 
filed  has  expired;  Hoover  v.  Lebo,  14  D.  R.  238  (Clear- 
field, 10()r>);  appeals  may  ho  taken  from  the  action  of 
the  court  upon  rules  to  show  cause  why  a  lieu  should 
not  be  stricken  off  if  the  order  or  judgment  he  definit  ive 
or  final  hut  a  rule  "to  show  cause  why  an  attorney 
should  not  enter  an  appearance  and  si  like  oil"  (sic.)  a 
mechanic's  lien  is  not  "a  definite  judgmenl  or  decree" 
from  which  an  appeal  will  lie;  Kurrie  v.  Cottinghamt 
200  Pa.  12  1 100  1 1.    AH  the  instances  mentioned  are  suh- 

joets  of  rules  to  show  cause  why  the   lion  should   QOt    be 

struck  off  ami  are  of  course,  and  even  if  judgment  by  do- 
fault    he  entered   on    the    lien    the   rule    would    slill    he   of 


132  MOTIONS  AND  RULES  AT  COMMON  LAW. 

course,  but  should  take  the  form  of  "  to  show  cause  why 
the  judgment  entered  should  not  be  vacated  and  the  scire 
facias"  where  one  has  issued,  upon  which  judgment  has 
been  entered  quashed.  After  judgment  has  been  entered 
upon  a  scire  facias  sur  claim  if  defendant — or  a  terre- 
tenant  has  a  defence  on  the  merits.  As  for  example  to 
the  character  of  the  work,  cost,  etc.,  an  allocatur  must  be 
sought  and  the  rule  be  to  open  the  judgment. 

7.  The  test  of  the  strength  of  rules  of  this  kind  is,  is 
the  reason  of  the  rule  such  as  would  constitute  a  valid 
defence  to  a  scire  facias  which  if  established  by  proof, 
either  by  inspection  of  the  record  or  by  verdict,  wrould 
entitle  defendant  to  final  judgment.  As  a  general  rule, 
no  objection  to  the  scire  facias  sur  claim  can  be  made  by 
way  of  defence  to  a  scire  facias  in  revival  of  a  judg- 
ment entered  thereon,  but  if  the  defence  is  to  the  legality 
of  the  scire  facias  sur  claim  itself  and  is  raised  by  a 
party  of  right  the  court  will  entertain  it. 


II. 

Municipal  Claims. 

1.  In  respect  of  Municipal  Claims  as  little  can  be  said 
in  justification  of  the  legislation  which  has  been  perpe- 
trated in  their  interest  as  in  Mechanic's  Liens;  perhaps 
indeed  not  as  much  for  a  municipal  claim  arises  from  the 
inherent  right  of  government  to  tax  the  owner  of  the 
ground  subject  to  the  lien,  and  to  enforce  payment  from 
all  citizens.  The  basis  of  taxation  of  course  is  naturally 
land,  and  for  the  support  of  the  local  municipality  the 
ratio  of  taxation  is  established  by  the  value  of  the  tax- 
able real  property  which  must  also  in  every  case  of  im- 
provement be  the  measure  of  the  proportion  he  must  pay 
as  his  share.  The  right  to  assess  and  the  duty  to  pay 
can  be  easily  established,  the  tax  is  fixed  and  remains  so 


MOTIONS  AND  RULES  AT  COMMON  LAW.  [33 

until  it  is  paid,  needless  then  the  more  than  fifty  laws 
passed  on  the  subject  since  the  Act  <>f  .March  28,  L81  1. 
See  Law  223.  All  of  which  are  responsible  for  the  con- 
flicts of  decision,  on  the  subject  so  forcefully  set  out  in 
the  report  of  the  Committee  of  Law  Reform  at  the  An- 
nual Meeting  of  the  Pennsylvania  Bar  Association  of 
1900.  See  Vol.  VI.  of  Proceedings  of  Penna.  Bar  Asso- 
ciation, page  21. 

But  it  is  not  the  province  of  this  book  to  proceed  the 
discussion  on  these  lines  as  are  developed  in  the  legisla- 
tion and  it  is  to  the  practice  under  it  we  must  confine  our- 
selves, so  that,  with  expressing  the  belief  that  a  far 
less  complicated  system  of  enforcing  municipal  claims  of 
all  kinds  could  be,  and  ought  to  be,  adopted  we  proceed 
to  the  discussion  of  the  rules  which  prat  ice  has 
developed. 

2.  Rules  relating  to  municipal  claims  are  of  two  classes 
those  which  attack  the  validity  of  the  claim  for  irregu- 
larity in  the  lien  itself  apparent  on  the  face  of  the  record 
and  are  available  at  any  stage  of  the  proceedings,  and 
those  which  are  directed  against  the  lien  on  account  of 
error  in  the  claim  not  apparent  on  the  face  of  the  record, 
e.  (/.,  misdescription  of  the  property,  naming  as  defend- 
ant one  who  is  not  the  registered  owner  of  the  property 
when  either  the  lien  is  filed  or  at  the  time  the  scirefacias 
issues,  in  the  two  last  named  instances  the  rule  is  not  of 
course,  but  must  be  allowed  upon  a  petition  verified  by 
oath  which  must  precisely  state  the  petitioner's  whole 
case.  All  instances  of  irregularity  in  the  claim,  mis- 
description or  giving  the  wrong  person  as  defendant  are 
of  course  available  by  affidavit  of  defence,  but  practi- 
cally, one  who  is  not  interested  in  the  land  is  not  apt  to 
trouble  himself  to  make  an  affidavit  of  defence  particu- 
larly as  a  judgment  by  default  is  not  in  personam. 
Therefore,  it  behooves  an  actual  and  registered  owner  to 
move  to  he  admitted  to  tin-  record  to  take  the  rule  Qeces- 


13 J:  MOTIONS  AND  RULES  AT  COMMON  LAW. 

sary  to  free  his  land  from  the  cloud  of  an  imperfect  lien 
or  a  wrongful  judgment. 

3.  A  good  example  of  what  is  such  irregularity  on  the 
face  of  the  record  as  will  permit  a  rule  to  show  cause 
why  the  claim  shall  not  be  struck  off  is  found  in  the  case 
of  Connellsville  v.  Gilmore,  15  W.  N.  C.  343  (S.  C.  1884). 
The  lien  was  filed  for  the  expense  to  the  Borough  in  re- 
moving an  obstruction  in  the  highway  upon  which  de- 
fendant's property  abutted,  the  defence  was  that  the 
claim  did  not  contain  an  averment  of  service  of  notice  on 
defendant  to  remove  the  obstruction.  The  court  below 
made  absolute  the  rule  and  the  Supreme  Court  affirmed. 
The  opinion  was  by  the  late  Chief  Justice  Paxson  who, 
after  calling  attention  to  the  fact  that  the  amount  in- 
volved in  the  case  was  $4.44,  remarks :  "  The  maxim  de 
minimis  non  curat  lex  does  not  appear  to  prevail  in  this 
State."  This  same  rule  was  available  in  Phila.  v.  Han- 
best,  15  W.  N.  C.  349  (C.  P.  4,  1884;  where  no  aver- 
ment was  made  in  the  claim  that  the  preliminary  notice 
to  the  owner  of  the  land  to  do  the  curbing,  to  recover  the 
cost  of  which  the  lien  was  filed.  To  cite  examples  of 
what  irregularities  on  the  face  of  the  record  will  result 
in  the  summary  removal  of  the  lien  from  the  index  and 
the  numerous  authorities  therefore  would  extend  the  dis- 
cussion to  the  limits  of  weariness,  so  it  is  sufficient  to  say 
broadly  that  any  failure  to  comply  with  the  mandates  of 
the  law  then  in  force  at  the  time  the  right  to  file  the  claim 
accrued  and  under  which  it  was  filed  either  in  form  or 
as  to  time  of  procedure  is  death  to  the  claim  by  a  rule 
to  strike  off.  The  entry  of  judgment  on  the  scire  facias 
or  even  after  revivals  of  the  same,  a  rule  to  strike  off  will 
prevail.  A  defence  to  the  form  of  or  failure  in  some  es- 
sential statutory  requirement  is  never  too  late  where  the 
party  claiming  protection  of  the  statute  never  had  op- 
portunity to  present  it;  City  v.  Nell,  25  Pa.  Super.  Ct. 
347  (1904).    And  indeed  it  inav  be  stated  that  even  the 


MOTIONS  AND  RULES  AT  COMMON  LAW.  1;;-, 

apparent  neglect  of  a  land  owner  in  sleeping  on  j,js 
rights  and  penalty  the  claim  to  get  to  judgment  will  net 
give  it  force  for  as  Judge  Arnold  remarked  in  Phila.  v. 
Hanbest,  (.supra).  "A  valid  judgment  can  never  be 
entered  on  the  claim."  But  there  is  an  exception  to  this 
proposition,  if  a  claim  be  good  as  to  pari  but  had  as  to 
part,  and  defendant  has  had  his  day  in  court  without  ma- 
king his  defence  so  that  a  default  judgment  is  entered, 
a  rule  to  strike  off  the  judgment— a  very  questionable 
rule  in  such  a  case,  at  any  rate — will  be  discharged  be- 
cause the  judgment  is  the  sum  of  all  the  items  of  the 
claim  some  of  which  were  good;  Phila.  v.  ^Yal1acc,  7 
D.  R.  721  (C.  P.  1,  1898). 

4.  Failure  to  issue  or  prosecute  to  judgment  a  scire 
facias  within  five  years  (prior  to  the  Act  of  1897)  are 
other  examples  of  fatal  faults  in  the  record.  Phila.  v. 
Reeder,  13  D.  R.  G14  (C.  P.  2,  1901).  As  an  example  of 
the  rigor  with  which  this  principle  maintains  look  at 
Hunter  v.  Lanning,  72  Pa.  25  (1872),  there  the  omission 
was  actually  induced  by  defendants  attacking  the  claim 
and  yet  the  claim  was  held  invalid  because  it  was  not  re- 
duced to  judgment  within  five  years  from  filing.  Where 
the  scire  facias  sur  claim  has  issued  too  late  a  judgment 
entered  thereon  is  wholly  void  and  would  not  sustain  a 
valid  execution.  The  proper  rule  is  to  show  cause  why 
the  scire  facias  should  not  be  quashed,  judgment  vacated 
and  all  subsequent  proceedings  set  aside. 

Cases  in  the  line  of  Simons  v.  Kern,  92  Pa.  I".; 
Phila.  v.  Cooper,  212  Pa.  306,  imperfect  execution  of 
the  scire  facias;  of  Phila.  v.  /Hester,  1  12  Pa.  39,  issuance 
of  scire  facias  after  the  lien  of  the  claim  had  expired; 
may  be  added  to  the  foregoing  as  types  of  the  prevailing 
ones  under  the  authority  of  which  rules  are  taken. 

5.  A  further  function  of  rules  in  general,  is  applied  in 
Municipal  claims,  where  interpretations  of  Hie  meaning 
of  a  statute  is  obtained;  an  example  of  this  is  found  in 


136  MOTIONS  AND  RULES  AT  COMMON  LAW. 

Phila.  v.  Sciple,  12  D.  R.  582  (C.  P.  2,  1903).  The  Act 
of  July  26,  1897,  P.  L.  420,  while  requiring  a  scire  facias 
"  to  revive  and  continue  "  the  claim  to  issue  within  every 
five  years  of  the  duration  of  the  lien  exempts  the  thith- 
erto essential  under  the  Act  of  April  16,  1840,  P.  L. 
410,  of  entering  a  judgment  on  the  revival,  the  mere  issue 
of  the  scire  facias  being  sufficient.  To  the  scire  facias 
sur  claim  defendant  filed  an  affidavit  of  defence  which 
the  plaintiff  did  not  attack  nor  took  any  further  steps 
until  within  the  five  years  there  current  where  a  scire 
facias  to  revive  the  claim,  as  provided  by  the  statute 
went  out.  Defendant  took  a  rule  to  show  cause  why  this 
writ  should  not  be  quashed  on  the  ground  that  he  had 
offered  his  defence  to  the  claim.  The  court  made  the 
rule  absolute,  holding  (Wiltbank  J.)  that  the  act  con- 
templated only  undefended  claims  and  that  where  an 
affidavit  of  defence  has  been  made  to  a  scire  facias  it 
must  be  disposed  of  before  another  writ  can  be  obtained. 

6.  In  rules  in  Municipal,  and  for  that  matter,  Me- 
chanic's Liens  also,  it  must  be  remembered  that  while 
this  class  of  claims  are  dependent  for  their  validity  upon 
their  adherence  to  the  requirements  of  the  statutes  which 
give  them  standing  yet  this  very  condition  appeals  to  the 
equitable  sense  of  the  courts,  and  the  petitioner  for  the 
rule  had  better  be  equipped  with  some  meritorious  de- 
fence if  he  hopes  to  get  rid  of  an  obnoxious  claim  on  a 
mere  technicality. 

The  importance  of  strictly  observing  the  statutory  re- 
quirements in  pursuing  a  municipal  claim  will  be  recog- 
nized when  it  is  remembered  that  unless  this  be  done  the 
judgment  will  not  sustain  execution  and  the  purchasers 
at  a  sheriff's  sale  under  a  levari  facias  on  the  judgment 
will  take  no  title;  Simon  v.  Kern,  92  Pa.  455.  There 
is  neither  space  nor  occasion  to  comment  at  large  on  the 
difference  between  such  error  in  the  proceedings  as  is 
cured  by  judgment  and  such  a  judgment  will  not  rem- 


MOTIONS  AND  RULES  AT  COMMON  LAW.  [37 

edy,  but  in  general  it  may  be  stated  to  be  tin-  law,  that 
the  mandates  of  the  act  which  gives  the  right  to  lien  for 
the  claim  which  relate  to  proceedure,  such  as  notice  to 
the  proper  party  and  service  of  writs  must  be  followed 
without  any  deviation, to  preserve  a  title  giving  power  to 
the  judgment  on  the  claim.  But  this  only  if  there  has 
been  no  neglect  of  the  defendant  in  the  performance  of 
his  part  under  laws  to  which  he  as  a  property  owner  is 
subject.  Laches  will  prevent  the  prevailing  of  an  oth<  1- 
wise  good  defence:  Phila.  v.  Unknown,  20  Pa.  Super. 
Ct.  203  (1902)  ;  but  it  is  a  question  whether  a  too  much 
belated  attack  upon  a  municipal  claim  validates  the  judg- 
ment on  the  claim  to  the  extent  of  sustaining  an  ex<  cu- 
tion  sufficient  to  give  good  title. 


138  MOTIONS  AND  RULES  AT  COMMON  LAW. 


XIV. 

Rule  to  set  aside  sheriff's  sale. 

A  few  words  on  the  rule  to  set  aside  a  sheriff's  sale 
must  conclude  our  subject. 

1.  Notice  of  this  rule  must  be  given  to  all  the  parties 
interested,  that  is  to  plaintiff,  defendant,  sheriff,  and 
purchaser.  This  last  is  frequently  overlooked,  but  is 
essential,  as  by  his  bid  the  purchaser  has  acquired  an 
inchoate  title,  of  which  he  cannot  be  divested  without 
opportunity  to  be  heard. 

2.  It  was  the  settled  practice,  established  in  the  Dis- 
trict Court  and  followed  by  the  present  Courts  of  Com- 
mon Pleas,  though  not  made  a  rule  of  court,  that  on  the 
hearing  of  a  rule  to  set  aside  a  sheriff's  sale  for  irregular- 
ity in  posting  bills,  etc.,  the  deposition  of  the  sheriff's 
billposter  is  a  necessary  part  of  the  testimony.  The  evi- 
dence on  the  point  of  omission  to  post,  etc.,  is  not  only 
commonly  interested,  but  is  almost  always  merely  nega- 
tive, and  experience  has  shown  how  often  it  is  unreli- 
able. The  testimony  of  the  billposter,  therefore,  as  that 
of  the  person  whose  duty  it  is  to  be  informed  on  the  ques- 
tion, and  as  in  most  cases  the  only  affirmative  evidence 
attainable,  must  always  be  taken,  not  as  necessarily  con- 
clusive, but  as  an  indispensable  part  of  the  evidence  to 
which  the  court  is  entitled. 


MOTIONS  AND  RULES  AT  COMMON  LAW.  [39 

3.  Another  point  of  practice,  under  this  rule,  in  con- 
nection with  the  rule  to  set  aside  execution  which  is  com- 
monly joined  with  it,  also  settled  and  regarded  as  equiv- 
alent to  a  rule  of  court,  is  that  after  the  sheriff's  ad- 
vertisement has  begun,  or  any  of  the  expenses  of  the  exe- 
cution incurred,  no  stay  of  proceedings  shall  he  granted 
with  the  rule  until  after  the  sale.  Where  the  cause  al- 
leged is  such  that  the  judge  allowing  the  pule  can  see 
from  the  record  that  the  record  is  fatally  irregular  this 
practice  is  occasionally  departed  from,  hut  only  in  very 
clear  cases.  The  reason  of  the  rule  is  obvious;  the  ex- 
penses of  advertisement  are  usually  considerable,  and 
after  they  have  been  partly  incurred  it  is  better  that  they 
should  go  on  to  completion,  for  if  the  rule  is  discharged 
then  the  expenditure  has  not  been  lost,  and  the  plaintiff 
has  not  been  delayed;  while  if  the  rule  is  made  absolute, 
the  whole  matter,  being  inchoate  until  delivery  of  the 
sheriff's  deed,  remains  under  the  control  of  the  court. 
After  the  sale,  however,  the  acknowledgment  of  the 
sheriff's  deed  will  always  be  stayed  pending  the  hearing 
of  the  rule. 

4.  The  rule  to  set  aside  a  sheriff's  sale  should  he  ap- 
plied for  promptly;  Young  v.  Wall,  1  IMiila.  ('»!)  il>.  C. 
1850)  ;  but  it  may,  and  where  the  delay  is  properly  ac- 
counted for,  will  be  granted  at  any  time  before  delivery 
of  the  sheriff's  deed.  Some  conveyancers  hold  that  the 
acknowledgment  of  the  sheriff's  deed  is  tantamount  to  a 
delivery,  especially  as  under  the  practice  in  this  county 
the  registering  and  recording  of  the  {\i'c(\  are  done  for 
the  vendee  out  of  which  incidents  are  clearly  construc- 
tively the  act  of  the  vendee,  and  he  does  not  receive  his 
t]vc(l  until  after  it  has  been  registered  and  recorded. 
Perhaps  it  comes  from  this,  that  there  has  always  been 
reluctance  on  the  pari  of  the  court  to  give  the  role  afU  r 
acknowledgment.    It  is  true  that  sheriff's  y\r^\  poll  like 


140  MOTIONS  AND  RULES  AT  COMMON  LAW. 

an  indenture  deed  between  parties  is  effective  only  from 
delivery,  but  the  question  is  what  constitutes  delivery? 
After  the  purchaser's  title  has  vested  it  cannot  be 
taken  from  him  by  the  summary  process  of  a  rule,  it 
must  be  if  at  all  by  a  bill  in  equity,  or  an  action  of  eject- 
ment. Carr  v.  O'Neill,  1  W.  N.  C.  41  (D.  C.  1874); 
Wrode  v.  Bancroft,  Ibid.  374  (C.  P.  1875)  ;  Stephens 
v.  Stephens,  1  Phila.  108  (D.  C.  Allegh.,  1850)  ;  Vauer- 
man  v.  Cooper,  9  Penna.  L.  J.  265;  Evans  v.  Maury,  17 
W.  N.  C.  377  (S.  C.  1886). 

Nor  should  there  be  any  delay  in  performing  the  con- 
ditions if  any  are  imposed  by  the  court  in  granting  the 
rule  ;  Association  v.  Adams,  1  W.  N.  C.  160  (C.  P.  4, 
1875). 

5.  The  grounds  for  setting  aside  sheriff's  sales  are 
many  but  an  examination  of  the  reported  cases  in  the 
Weekly  Notes  of  Cases,  and  other  Common  Pleas  Re- 
ports ;  will  lead  to  grouping  them  under  two  heads  ; 
where  there  is  any  statement  or  mistake  in  the  adver- 
tisement of  the  sale  which  would  tend  to  impair  the 
value  of  the  property  and  where  there  has  been  a  mis- 
take in  the  process  of  the  writ  of  execution. 

Of  course,  fraud  and  collusion  between  plaintiff  and 
purchaser,  or  defendant  and  purchaser  will  operate  as 
reasons  for  granting  and  making  absolute  a  rule  to  set 
aside  a  sale.  E.  g.,  such  action  between  the  interested 
parties  so  that  bidders  were  deterred.  Conrad  v.  Ed- 
wards, 7  Pa.  C.  C.  342  (Chester,  1892)  ;  United  Security 
Co.  v.  Safford,  3  Lack.  L.  N.  51  (Lack.  1897). 

As  to  causes  coming  under  the  head  of  errors  in  ad- 
vertisement, it  must  be  remembered  that  the  mistake 
complained  of  is  in  the  "  hand  bills  "  of  the  sale.  An 
error  occuring  in  a  newspaper  advertisement  not  found 
in  the  hand  bill  is  not  sufficient  ground  to  set  aside  the 
sale  ;   Building  Asso.  v.  Silvy,  4  Phila.  17  (D.  C.  1860). 

Where  a  levari  facias  in  execution  of  a  judgment  on  a 


MOTIONS  AND  RULES  AT  COMMON  LAW.  141 

scire  facias  sur  mortgage  fails  to  describe  the  property  as 
it  stands  at  the  time  of  sale  it  having  been  materially 
improved  since  the  date  of  the  mortgage  the  sale  will 
be  set  aside.  And  if  it  appear  by  the  depositions  taken 
under  the  rule,  that  the  character  <>f  the  property  is  su- 
perior to  the  description  in  the  hand  bill  the  rule  will  be 
made  absolute;  Trust  Co.  v.  Herr,  14  W.  X.  C.  390  (C. 
P.  4,  1884). 

As  to  misdescription  in  general,  sec  Broum  v.  Shep- 
pard,  1  W.  N.  C.  103  (1).  C.  1874)  ;  Mole  v.  Doemer,  1 
Ibid.  113  (C.  P.  Phila.  1874),  and  Moyer  v.  Ibbotson,  2 
W.  N.  C.  29  (C.  P.  2,  1875).  Inadequacy  of  price  is 
not  a  cause  for  but  an  element  in  the  case  of  a  defendant 
who  seeks  to  set  aside  a  sheriff's  sale.  Whitaker  v.  Berky, 
2  W.  N.  C.  470  (C.  P.  1,  187(i).  For  advertisement  in- 
sufficient under  the  Act  of  Assembly  a  sale  will  be  set 
aside.    Haas  v.  Fisher,  10  D.  R.  150  (Clearfield,  1901  i. 

6.  While  "  caveat  emptor  "  applies  to  tin'  purchaser  at 
a  sheriff's  sale;  Hcrr  v.  Draucher,  7  Lane.  L.  K.  383 
(1890)  ;  a  mistake  of  law  on  the  part  of  a  purchaser 
at  sheriff's  sale  as  to  the  discharge  of  liens,  will  permit 
relief;  Vincent  v.  Eunsinger,  7  Pa.  C.  <\  331.  (Sul- 
livan 1889).  But  a  plaintiff  in  execution  who  failed  to 
attend  a  sheriff's  sale  which  discharged  his  lien  cannot 
have  the  sale  set  aside  for  that  reason  :  Building  Asso. 
v.  Nesbitt,  21  Pa.  Super.  Ct.  150  ( 1902). 

7.  On  a  rule  to  set  aside  sheriff's  sale  depositions  must 
invariably  betaken,  unless,  of  course,  tie-  parties  agree  ;is 
to  the  facts  formally  so  that  tie-  agreemenl  may  be  made 
part  of  the  record.  Even  if  the  irregularity  complained 
of  is  patent  in  the  advertisement  it  must  be  shown  in  evi- 
dence under  deposition,  it  does  not  sufficiently  appear  by 
being  averred  in  the  affidavil  in  support  of  the  rule  qo1 
only  because  the  affidavit  is  only  available  for  i  he  purpose 
of  having  this  rule  allowed,  but  because  the  advertisement 
is  evidence  and  subject  to  contradiction  or  explanation. 


142  MOTIONS  AND  KULES  AT  COMMON  LAW. 

A  rule  to  set  aside  a  sheriff's  sale  of  personalty  is 
of  comparatively  rare  occurrence.  The  authority  for  it, 
before  delivery  of  the  goods  is,  however,  expressly  given 
by  statute  (act  of  10th  April,  1849,  Purdon,  645,  pi.  49), 
and  it  is  sometimes  used.  See  Yocum  v.  Specht,  1  W. 
N.  C.  6  (D.  C.  1874). 


MOTIONS  AND  RULES  AT  COMMON  LAW.  143 


XY. 


Whilst  there  is  a  theoretical  procedure  in  the  argu- 
ment on  the  return  or  the  hearing  of  a  rule  as  stated, 
yet  in  many  cases  this  is  not  adhered  t<>  and  almost 
informality  prevails,  this  is  owing  to  the  desire  cm  the 
part  of  the  court  to  thoroughly  understand,  noj  onlv  the 
facts  of  the  case  but  also  the  state  of  record,  ami  course  of 
pleading,as  well  as  the  view  of  the  law  held  by  the  respec- 
tive sides  of  the  controversy.  Side  light  often  musl  be 
sought  to  render  this  comprehension  complete,  and  fads 
not  raised  formally  by  the  rule  and  answer — for  often  the 
cause  required  to  be  shown  amounts  to  an  answer — are 
presented  by  mere  statement  of  counsel.  It  is  here  that 
the  professional  stains  of  the  lawyer  is  relied  upon  by 
the  court.  As  the  profession  derives  its  dignity  from  its 
ecclesiastic  origin  it  can  only  be  maintained  by  the 
learning  and  personal  character  of  the  advocate.  Ami 
while  the  spirit  of  the  age  does  seem  to  have  caused  a 
departure  from  not  only  the  forms  and  met  hod  of  thirty 
years  ago, but  also  a  marked  change  in  the  ethics  of  the 
profession  and  although  the  practice  of  these  days 
places  it  perilously  near  commercialism, we  must  remem- 
ber that  the  aim  of  our  calling  is  the  ad  in  i  nisi  rat  ion,  the 
effecting  of  justice;  honest  differing  in  I  he  construing  or 
statute  or  applying  a  principle  of  law  to  (he  particular 
facts  of  a  cause,  must  occur  and  is  the  real  motive  of  nil 
litigation,  but  fairness  in  presenting  of  facts  and  exacl 
ness  in  stating  tin-  proposition  raised  by  the  law  as  to 


144;  MOTIONS  AND  RULES  AT  COMMON  LAW. 

the  facts  are  essential  to  the  successful  and  convincing 
argument. 

Mistakes  will  happen,  errors  occur  ;  but  none  that  can- 
not be  cured  or  at  least  mitigated,  and  all  we  do  we  must  do 
with  our  might.  Diligence,  exclusive  application,  persist- 
ent industry  is  exacted  of  us  all  on  bench  or  at  bar  by 
our  profession.  Personal  integrity,  purity  of  life  cannot 
be  omitted  or  ignored  in  any  servants  of  the  community 
and  as  we  are  entirely  dependent  upon  the  confidence  of 
our  fellow  citizens  we  cannot  win  their  esteem  otherwise 
than  by  learning  and  zeal.  Kindness  and  consideration 
for  each  other  is  demanded  by  the  most  necessary  spirit 
of  unity,  but  we  must  exercise  care  not  to  trade  upon  our 
privileges  as  lawyers.  Courtesy  to  our  adversary  sel- 
dom imperils  our  client's  case  and  frankness  to  the  court 
is  never  wasted.  The  privileges  of  the  lawyer  to-day 
have  descended  to  him  from  his  clerical  predecessors 
and  as  those  privileges  were  bestowed  upon  the  clergy 
out  of  respect  to  their  calling,  it  is  enough  to  consider 
their  origin  that  we  may  see  to  it  that  we  do  not  abuse 
them.  Gilbert  makes  his  Lord  High  Chancellor  say 
in  "  Iolanthe:  " 

"In  other  professions  in  which 'men  engage, 
The  army,  the  navy,  the  church  and  the  stage, 
Professional  license  if  carried  too  far 
One's  chance  of  promotion  must  certainly  mar, 
And  I  fancy  this  rule  might  apply  to  the  Bar — " 

We  have  a  rich  heritage  capable  of  richer  result,  it  is 
for  all;  let  every  one,  then,  do  his  part  to  develop  his 
share  so  that  in  the  great  sum  the  whole  people  will  be 
bettered  by  what  we  have  done.  It  is  fitting  that  we  con- 
clude with  the  final  paragraphs  of  Judge  Mitchell's  ad- 
dress to  the  Law  Academy,  delivered  on  May  15,  1879, 
on  "  Motions  and  Rules  at  Common  Law,"  itself  the  sub- 
stance and  foundation  of  this  attempt. 


MOTIONS  AND  RULES  AT  COMMON  LAW.  |  j;, 

"The  members  of  the  bar  must  come  in  constant  con- 
tact with  each  other;  for  better  or  for  worse  they  arc 
tied  together  in  their  business  relations  so  Ion-;  as  fchey 
pursue  a  common  profession,  and  without  a  constant 
cultivation  of  the  kindlier  feelings,  their  intercourse 
must  degenerate  into  an  intolerable  Ishmaelism.  There 
is  a  line  not  always  easy  to  be  drawn,  especially  by  a 
young  man,  between  the  sacrifice  of  clients'  rights  and 
the  accommodation  of  adverse  counsel.  But  it  is  a  line 
which  generally  is  soon  learned,  and  in  doubtful  cases 
it  is  always  well  to  lean  to  the  amiable  side.  The  ac- 
cidents, and  hardships,  and  difficulties  of  practice  are 
such  that  the  best  and  most  careful  practitioner  has 
sometimes  need  to  ask  indulgence.  A  favor  done  seldom 
goes  amiss,  and  if  it  is  occasionally  thrown  away,  there 
is  always  left  the  satisfaction  of  having  at  least  done 
your  part.  The  Philadelphia  Bar  have  always  been  as 
celebrated  for  their  courtesy  towards  each  other,  as  for 
their  learning  and  abilities.  I  am  quite  sure,  gentlemen 
of  the  Law  Academy,  that  you  will  not  allow  it  to  fall 
short  of  its  established  character  in  that  or  any  other 
respect." 


THE  END. 

10 


INDEX. 

A. 

F.MiK 

ACTION. 

Affidavit  for  rule  to  show  cause  of  may  not  be  ami  tided  19 

By  court  of  its  own  motion 2 

Rule  to  show  cause  of in 

Under  the  Act  of  May  25th,  1887 90 

AFFIDAVIT. 

As  foundation  for  a  rule  must  make  prima  facie  case  1!> 

Attorney  in  the  case  may  not  take 19 

Exceptional  cases 30 

In  support  of  petition  for  rule  may  be  amended.  ...  1!> 

Must  conform  to  language  of  statute 20 

Not  admissible  as  evidence  at  the  hearing 30 

Presentation  of  to  the  court  for  an  allowance  of  rule  20 

AFFIDAVIT  OF  DEFENCE. 

Defence  good  at  time  of  filing  affidavit  is  sufficient ...  109 
Estahlished  formula  where  facts  are  not  averred  as  of 

affiant's  own  knowledge L0*3 

Form  of  affidavit 10*3 

General    remarks in  I 

Is  conclusive  upon  all  facts  properly  averred 1  U> 

Judgment   for  want   of Ill 

plaintiff  if  not  filed  in  I  ime 113 

whether  for  part  or  whole  of  claim,  is  final  L17 

List  of  rules  relating  to <if 

Must  he  made  by  defendant I"  I 

specific  statement   of   facts I1"! 

make  a  good  prima  facie  defence,  sufficient  if  it 

docs 109 

meet  Plaintiff's  case  fairly  by  statement  of  fact-  109 

Rule  to  open  judgment   for  want  of 62 

for  judgment   for  want   of  ,-i  sufficient  affidavit 

of  defence 115 

Requirements   if  by   others 104,  106 

Scope  of  supplemental  affidavits 1 1'> 

147 


148  INDEX. 

AFFIDAVIT  OF  DEFENCE.— Continued.  page 

Supplemental  affidavits  liberally  allowed 110 

Time  of  filing  affidavits 101 

Withdrawing  part  of  claim  and  taking  judgment  for 

balance    117 

Written  instruments  should  be  set  out 108 

ALLOCATUR. 

List  of  principal  rules  not  requiring 12 

Stay  of  proceedings  required 20 

When  not  required ,  9 

AMENDMENT. 

Rules  in  regard  to 83 

Tendency  to  confusion  between  power  of  amendment 
by  adding  parties  and  the  acquisition  of  juris- 
diction      4 

APPEARANCE. 

Rule   to   withdraw 47 

APPEAL. 

Rule  to  enter,  from  award  of  arbitrators 42 

to  strike  off,  from  award  of  viewers 42 

to  vacate   40 

APPRAISEMENT. 

To  amend 74 

set  aside 75 

ARGUMENT. 

Order  of    generally 31 

Rules  for  new  trial  and  to  take  off  nonsuit  excep- 
tions          33 

ASSESSMENT  OF  DAMAGES. 

Rules  in  regard  to 58 

to   amend 59 

set  aside,  by  jury  of  inquest 60 

vacate,    Prothonotary's 59 

ATTACHMENT  FOR  CONTEMPT. 

Ground  for  must  be  laid  by  personal  service  on  party       22 
Rules  in  regard  to 69-76 

ATTACHMENT  FOR  COSTS. 

Rule  for 69 


INDEX.  \rj 

PAGB 

'ATTACHMENT  EXECUTION. 

Rules  relating  to 40 

ATTORNEY. 

Notice  to.  is  notice  to  client,  except  where  attachment 

of  the  person  is  asked  for 

Rules  relating  to 46 

to  file  warrant  of 1 ,; 

set  aside  summons  on 1* 

strike  off  paper  filed  as  a  warrant  of 1" 

entry  of  appearance  of 4? 

from   roll   of 48 

to  produce  papers 48 

withdraw  appearance  of 47 

vacate,  order  admitting 48,  83 

AUDITA  QUERELA 2 

AUDIT. 

Rule  in  regard  to  costs  of ,,:' 

to  file  testimony 5? 

AWARD. 

Rule  to  set  aside CO 

B. 

BAIL. 

List  of  rules  relating  to 43 

Must  be  allowed 

Rule  to  discharge  on  common  bail 43 

for  one  bond  in  several  interpleaders 45 

to  reduce 43 

BEGINNING  AND  CONCLUSION. 

On  the  argument  of   rules  generally 31 

Practice   very   informal 143 

Rules  for  new  trial  and  to  take  off  non.-uit  exceptions       33 

BILL  OF  PARTICULARS. 

RUle  to  amend 

furnish   •''    ** 

furnish    more   particular 51 

in  regard   to I  1.  ■>  I , 

Works  stay  of  proceedings -'  I 

BOOKS  AND  PAPERS. 

Rule  to  produce  al  the  trial 'r,r» 


150  INDEX- 

C. 

PAGE 

CALLING  UP  RULES,    23. 

CAPIAS. 

Rule  to  abate 40- 

amend  writ,   39. 

discharge  defendant  on  common  bail,   .  .  .39,  40. 

set  aside  service  of, 39. 

CLAIM.    See  Statement  of  Claim. 

CONTEMPT.    See  Attachment. 

CONTINUANCE. 

Of  rules  on  the  lists 25 

CORAM  VOBIS.     See  Audita  querela 2 

COSTS. 

Rule  to  enter  security  for •  •  67 

enter  security  for  damages,  rule  to  set  aside 

ca.  sa.  for 68 

pay,  of  lunacy  proceedings 69 

Rules  in  regard  to 67 

CURRENT  MOTION  LIST 23 

D. 

DEPOSITIONS. 

All  rules  to  show  cause  imply  authority  to  take 30 

By  whom  to  be  taken 30 

List  of  rules  in  regard  to 56 

Rule  to  enlarge  time  to  take 49 

examine  opposite  party  under 56 

file  names  of  witnesses  to  be  examined  under  56 

file    57 

take    •••  56 

take  testimony  of  party  as  in  cross  examina- 
tion      57 

transmit  written   instrument  to  be  shown 

witness  in  commission 57 

When  dispensed  with 30 

DISCONTINUANCE. 

Rule   to ••••  84 

Rules  relating  to 53 


INDEX.  151 

PAGE 

DIVORCE. 

Motion  for  final  decree  in 7 

master  in 8 

Rule  to  amend  libel 81 

file  answer 85 

for  alimony  and  counsel  fee 81 

Rules  relating  to 81 

to  answer  libel,  &c 81 

E. 
EVIDENCE. 

Rule  to  produce  books,  &c,  at  trial 55 

Rules  relating  to 55 

EXECUTION. 

Against  real  estate,  not  stayed  after  sheriff's  adver- 
tisement has  begun 1 39 

List  of  rules  relating  to 71 

Rule  to  set  aside 39,  73 

mark   to    use    of   one    defendant,    judgmenl 

against  himself  and  otbers,  paid  by  him.  .        GG 

stay   73,  74 

have  court  control  the  order  and  manner  of 

Sheriff's   sale 74 

for  execution  should  not  issue  for  balance  due 

on    judgment 71 

on  Sheriff  to  proceed   with  execution   which   had 

been  stayed 71 

EXEMPTION  FROM  EXECUTION. 

Rule  in  regard  to 71 

Rule  for  appraisement  on  claim  for 7  1 

to   allow 75 

disallow    "  5 

strike  off  from   Fi.   Fa 

set  aside  claim  of 87 

F. 

FEME  SOLE  TRADER. 

Bond  of  in  interpleader 1,; 

FIERI  FACIAS. 

Rule  to  stay •,;'{ 

set  aside,  etc •  '-'•      *« 


152  INDEX. 

PAGE 

FOREIGN  ATTACHMENT. 

Rule  to  proceed 52 

FREEHOLD. 

Rule  to  justify  claim  of 44 

strike  off  plea  of 44 

G. 

GARNISHEE. 

Rule  to  allow  expenses  and  costs  to 68 

by  to  discharge  rule  to  answer 53 

pay  counsel  fee 53 

strike  off  rule  and  interrogatories 53 

on  to  answer  interrogatories 53 

pay  into   Court 53 

Rules  relating  to 53 

GENERAL  MOTION  LIST 25 

GUARDIAN  AD  LITEM. 

Motion  for  appointment  of 7 

H. 

HEARING. 

The  call  of  the  lists  for 24 

Postponement   of 25 

I. 

IMPERTINENT  MATTER. 

Rule  to  strike  out 55 

INTERPLEADER, 

The  Sheriff's  rule  for 53 

Rule  by  claimant  to  file  his  own  bond 44 

for  costs  against  claimant  who  ordered  fund 

into   Court 69 

defendant  to  pay  into  Court  and  claim- 
ant's  interpleader 54 

execution  to  issue  for  costs  of 68 

leave  to  proceed  where  no  bond  is  filed.  .  71 

one  bond  in  several 45 


INDEX. 
INTERPLEADER.— Continued.  PAGE 

issue  under  Act  of  1897 

on  claimant  to  give  bond  in  double 46 

to  allow  claimant's  costs,  &C 

file   statement 

strike  off  declaration,  &c 54 

strike  off  bill  of  costs,  filed 

set  aside  Fi.  Fa.  of  costs  in 

Bond  of  married  women  and  feme  sole  traders 4(> 


J. 

JUDGMENT. 

List  of  rules  relating  to 

Motion,  for,  non  obstante  veredicto 8 

On   points   reserved " 

In  arrest  of 

The  rules  to  strike  off,  and  to  open 118 

Distinction  between  opening  and  striking  off.  ...  121 
Struck  off  only  for  irregularity  appearing  on  the 

record    121 

Opened  to  allow  any  equitable  defence 11!' 

Confusion  in  the  language  of  the  cast- 121 

The  rule  to  strike  off 64,  118,  1 23 

Common-law  rule   124 

Applicable  in  anv  kind  of  judgments 123 

The  rule  to  open. 64,  118,  121 

Award  of  arbitrators ,;'> 

Equitable  relief  under  common-law  form..  118 
Confined  to  judgments  by  default  and  on  con- 
fession     118 

No  limit  as  to  time 119 

May  be  granted  on  terms 1 20 

Grounds  of  the  rule  in  general 120 

Rule  for,  against  garnishee  for  amount  admitted 

to  be  due 63 

amount  admitted   to  be  due 61 

de  bonis  testoris 62 

want  of  sufficient  affidavit  of  defence.  61 

on  conditional  verdict    61 

on     warrant     attorney     over     twent) 

years  old    61 

on  whole  record   62 

wit  bout  costs   69 

Rule  to  re-instate  judgment 62 


154  INDEX. 

JUDGMENT.— Continued.                                                                    page 
strike  off,  for  want  of  affidavit  of  de- 
fence      62 

strike  off,  entered  for  want  of  plea  same 

day  plea  filed  63 

enter  on  docket,  nunc  pro  tunc 63 

set  off  one  judgment  against  another,  63,  87 

correct  error  in  entering 64 

modify  65 

vacate  marking  to  use 66 

on  Prothonotary  to  satisfy 66 

to  strike  off  of  index  entered  on  verdict  in 

interpleader    66 

strike  off  of   index 84 

amend  assessment  of  damages 84 

vacate  decree  opening 84,  87 

vacate  judgment  and  quash  scire  facias.  87 

JURISDICTION. 

Not  acquired  by  rules 2 

L. 

LETTERS  ROGATORY. 

Rule  to  issue 57 

LOST  PAPERS. 

Rule  to  substitute  copies 54 

M. 

MANDAMUS. 

Rule  on  magistrate  38 

MARRIED  WOMAN. 

Bond  of  in  interpleader 46 

MECHANIC'S  LIEN. 

Rules  relating  to • 78-128 

Rule  to  amend 79 

amend  as  to  date 81 

pay  into  court  79 

restrict  claim  to  less  land 81 

strike  out  item  in   80 

strike  off  judgment  by  default 80 


index.  l55 

MECHANIC'S  LIEN.— Continued.  PAQS 

strike  off  78 

for  judgment  part  of  claim ?!»,  M 

MOTIONS.     See  Rules. 

Defined   1 

Must  be  in  writing 

For  judgment  non  obstante  veredicto 8 

judgment  on  points  reserved 7 

In  arrest  of 8 

Made  in  open  Court 7 

MOTION  LISTS   24 

MUNICIPAL  CLAIM. 

Rule  to  amend   79 

Rules   relating  to 78,  132 

apportion    79 

consolidate    80 

enter  security   .  . 81 

issue  sci.  fa 81 

open    judgment    and    admit    terre* 

tenant  to  defend   80 

quash  scire  facias 80 

strike  off  non  pros  on  scire  facias.  7!) 

vacate  judgment  in 80 


N. 
NEW  TRIAL. 

Rule  for 58 

NON  OBSTANTE  VEREDICTO. 

Motion  for  judgment 34 

NONSUIT. 

Rule  for  62 

Rules  in  regard  to ? .       M 

nonsuit  for  failure  to  furnish  l»ill 

of  particulars   

to  take  off  compulsory 62 

The  motion  for 7 

tfOTTCE. 

Giving  notice  and  serving  copy  of  rule  on  other  party.       21 


156  INDEX. 

NOTICE.— Continued.  page 
To  lay  foundation  for  attachment  must  be  on  party 

himself   22 

Of  calling  up  a  rule  after  it  has  been  passed 24 

insisting  on  argument  when  the  case  is  called 25 

taking  depositions   30 

o. 

OFFICE  RULES.     See  Peremptory  Rules. 
OPENING  JUDGMENT.     See  Judgment. 

P. 

PAPER  BOOKS. 

Who  to  furnish  26 

Required  in  all  cases 26 

Origin  of  term 26 

Office  of  27 

What  they  should  contain   29 

To  be  legibly  written  or  printed 28 

PARTIES. 

Bringing  in  new  parties  by  rule 4 

Distinction  between  putting  on  the  record  by  amend- 
ment and  acquiring  jurisdiction  over 4 

PAYMENT  INTO  COURT. 

By  sheriff  of  proceeds  of  sale  of  personalty 72 

PEREMPTORY  RULES. 

Examples  of  10 

Entered  in  office  and  do  not  go  on  the  lists 9 

Do  not  require  allocatur 9 

PLEADINGS. 

Rules  relating  to 48 

PLEAS. 

The  rule  to  strike  off 40 

Rule  to  plead 49 

withdraw  rule  to  plead 49 

plea    50 

strike  off  rule  to  plead 49 

file  additional   50 


INDEX.  157 

PAOK 

POINTS  RESERVED. 

Motion  for  judgment  on ? 

PRACTICE. 

Importance  of  accuracy  in 11. ", 

Act  of  May  25th,  1887 90 

PROCESS. 

Rules  relating  to 37 


R. 

RETURN  DAY. 

Of  rules  is  the  next  Monday 

Exceptional  cases  23 

RECORD. 

Rule  to  amend  83 

RULES. 

Defined  1 

Enlargement  in  modern  practice :* 

Scope  not  without  limits :'» 

Court  must  have  acquired  jurisdiction  over  person  or 

subject-matter    .! 

Some  apparent  exceptions  where  rules  are  equivalent 

to  original  process ."> 

Tendency  at  present  to  enlarge  the  office  of 5 

True  distinction  and  correct  practice t» 

Rules  are  either  peremptory  or  to  show  cause !» 

List  of  peremptory  rules  in 

Do  not  go  on  the  lists !» 

How  enforced    23 

Largest  body  of  rules  [g  of  the  second  kind !» 

Rules  are  also  divisible  into  those  which  are  of  course 

and  those  which  require  an  allocal ur is,  19 

Practical  importance  of  this  classification   18 

Principal  suggested  as  basis  for  classification. . .  is 

Last  of  principal  rules  which  are  of  course 1  2 

Stay  of  proceedings  upon  such  rules 20 

Rules  to  show  cause,  requiring  an  allocatur 19 

Founded  on  affidavit 19 

Bad  practice  in  regard  to  counsel  adminis- 
tering the  oath lit 


158  INDEX. 

RULES. — Continued,  page 

Presentation  for  allowance 20 

Proper  mode  of  making  applications  to 

the  court   22 

Motions  and  rules  must  be  in  writing 22 

Notice  to  opposite  party 22 

Not  necessary  in  default  rules 21 

Pules  peremptory  do  not  go  on  the  lists.  . .  .  23 

to  show  cause  go  on  the  lists 23 

Keturn  days  for  rules 23 

The  lists   24 

Transfers  from  one  list  to  the  next ....  24 

Calling  cases   25 

Discharged  if  not  answered  to  on  third  call.  25 
The  hearing,  practice  in  regard  to  postpone- 
ment   25 

Paper    books 26 

Depositions  in  support  of  and  against  rules.  30 

When  dispensed  with 30 

Right  to  begin  and  conclude 31 

Exception 31 

Rules   for  new  trial  and  to  take  off  non- 
suit     33,  35 

Motions  for  judgment  on  points  reserved. ..  34 
Second  rule  not  allowed  after  discharge  of 

first 35 

Withdrawing   rules 35 

List  of  the  principal  rules 37 

Rules  relating  to  attorneys 4(> 

bail,  security,  etc 43 

costs 67 

evidence    55 

execution   71 

judgment    GO 

mechanic's    liens   and   munic- 
ipal claims 78. 

process   37 

the  pleadings 48 

trial 58 

verdict     and     assessment     of 

damages    58 

in  divorce 81 

Miscellaneous  rules 83 

Statutory  rules 88 


INDEX.  159 

S. 

PA(iE 

SATISFACTION  OF  JUDGMENT. 

Rules  in  regard  to 

SECOND  RULE. 

Not  allowed  after  discharge  of  similar 35 

SECURITY. 

List  of  rules  relating  to -13 

Rule  to  enter  additional,  etc 44 

justify    43 

strike  off  41 

allow  terre-tenant  to  enter  for  stay  of  execu- 
tion     "1 

for,  for  costs  only 44 

SERVICE. 

The  rule  to  set  aside 38 

SHERIFF. 

Motion  for  acknowledgment  of  Deed 7 

The  rule  on  to  return  writ 

Rule  to  set  aside  amended  return 39 

to  amend  return 4  1 

assign  bond 4  1 

be  restrained  in  execution  to  certain  property.  "  1 

make  special  return "1 

pay  proceeds  of  personalty  into  Court 72 

sell  perishable  goods 12 

strike  off  return 41 

SHERIFF'S  INTERPLEADER.     See  Interpleader. 

SHERIFF'S  SALE. 

Rule  to  set  aside 

Notice  to  part ies  '  ;s 

Testimony  of  billposter  138 

Sale  may  be  sel  aside  at  any  time  before  delivery  of 

the  Sheriff's  Deed  ' 139 

Stay  of  proc lings  after  advertisemenl 139 

Setting  aside  sheriff's  sale  of  personalty 142 

STAY  OF  PROCEEDINGS. 

Rules  in  regard  to 

for  bill  of  particulars '"   51 

On  rules  not  requiring  an  allocatur 17 


160  INDEX. 

STAY  OF  PROCEEDINGS.— Continued.  page 

Rule  to  file  warrant  of  attorney  works 46 

Rule  to  open  judgment  does  not  stay  proceedings  un- 
less  so   ordered 41,  120 

Not   granted  to   stay   sheriff's    sale   after   advertise- 
ment     139 

STATEMENT  OF  CLAIM. 

Rule  to  amend 50 

file  more  specific   52 

Copy  of  instrument  sued  on,  requirements  as  to 101 

How  accuracy  of,  tested 102 

May  contain  abbreviations 102 

Obligation  sued  on  must  be  on  defendant 95 

raise  present  obligation 95 

must  be  absolute 95 

to  pay  money 96 

Instrument  sued  on  may  consist  of  more  than  one 

paper 96 

Executory   cases 97 

General  test  of  sufficiency  of  Statement  to  entitle  to 

affidavit  of  defense 100 

Statement  of  claim  90 

Act  May  25th,  1887,  P.  L.  271 90 

constitutional    92 

Must  contain  explicit  averment  of  amount  due 93 

Requisites  of  valid  claim 95 

No  intention  under  Act  of  1887  to  depart  from  old 

principles  of  accuracy  and  precision 92 

Rule  of  Court  Philadelphia  County— 30— Sec.  3 93 

SUIT. 

Rule  to  mark  to  use  of  assignee  in  bankruptcy 48 

STRIKING  OFF  JUDGMENT.     See  Judgment. 

T. 

TERRE  TENANT. 

Rule  to  intervene 41 

strike   off  appearance 41 

TRESPASS. 

Act  May  25th,  1887 90 

Affidavit  of  defense  in  actions 94 


INDEX.  161 

PAGE 

TRIAL. 

Rules  relating  to 

for  plaintiff  to  produce  original  of  papers  sued 

on    ' 60 

new  trial  

to  take  off  nonsuit 

vacate  order  to  produce  papers 

V. 

VERDICT. 

Rule  to  set  aside 

on  plaintiff  to  remit  part  of 

for  judgment  on  conditional 6] 

Rules  in  regard  to 

w. 

WARRANT  OF  ATTORNEY. 

Rule  to  file IT.       4G 

WITHDRAWING  RULES. 

When  leave  is  required 33 

the  proper  course  33 

WRIT. 

Rule  to  amend 39 

amend  return  to 41 

quash,   38,  42 

vacate   -4^ 


LAW  DEPARTBEN7 


